The Issue The issues are whether Respondent, Cynthia A. Foy (Respondent), committed the acts alleged in the Administrative Complaint; whether the alleged conduct constitutes violations of Subsection 1012.795(1)(b), (c), (f), and (i), Florida Statutes (2003),1/ and Florida Administrative Code Rule 6B-1.006(3)(a) and (e) and (5)(d); and, if so, what penalty, if any, should be imposed on Respondent's teaching certificate.
Findings Of Fact Based on the oral and documentary evidence adduced at hearing and the entire record in this proceeding, the following Findings of Fact are made: Respondent, Cynthia Foy, holds Florida Educator's Certificate No. 468641, covering the areas of early childhood education, elementary education, and English to speakers of other languages, which is valid through June 30, 2007. Respondent had been employed with the Hillsborough County School Board 17 years as of the 2002-2003 school term. At all times pertinent hereto, Respondent was employed as a first-grade teacher at Colson Elementary School (Colson) in the Hillsborough County School District (School District). Respondent worked as a teacher at Colson for about five years, beginning the 1998-1999 school year. During her employment in the School District, including her employment at Colson, Respondent never had any disciplinary action taken against her. From 1986 through 1996, Respondent consistently received satisfactory ratings on her annual teacher evaluations, except for one school year when she had three deaths in her family, including the sudden death of her father and of her 38-year-old brother. Respondent's Absences Respondent was absent from work 22 days during the 1998-1999 school year, her first year at Colson. Some of the absences were related to Respondent's health issues. However, most of Respondent's absences were related to her mother's illness. During the 1998-1999 school year, Respondent's mother was confined to a nursing home and had become very ill and frail. Due to her mother's failing health, Respondent wanted to be with her mother, to watch and take care of her. Also, even though Respondent's mother was in a nursing home, Respondent was responsible for taking her mother to her own doctors to make sure she got the proper care. During the 1999-2000 school year, Respondent was absent from work 13.5 days. Respondent's mother died during that school year. As a result, Respondent missed 13.5 days to deal with matters related to her mother's death. During the 2000-2001 and 2001-2002 school years, Respondent was absent from school for 19.45 and 16 days, respectively. These absences were because of Respondent's own health issues. During these school years, Respondent was under an extreme amount of stress due to what she perceived to be a hostile work environment at school. Mary Clark, principal of Colson, was concerned about Respondent's absences and specifically noted this concern on all of Respondent's evaluations, which are at issue in this proceeding. The reasons for Respondent's absences were not disputed, and there is no assertion that the absences were unauthorized. However, Mrs. Clark believed that Respondent's absences resulted in the lack of continuity of instruction and negatively impacted the learning of students in Respondent's first-grade classes. Mrs. Clark testified that because of their concern about their children's progress, some parents requested that their children be transferred from Respondent's class to another first-grade class. Records of such requests and actual transfers were not presented at hearing. However, Mrs. Clark recalled that at least one student had been transferred from Respondent's class. Whether the only reason for the transfer was Respondent's absences is unclear. Notwithstanding Mrs. Clark's concern and belief that Respondent's absences had a negative impact on the students in her class, no basis for this concern was established. To the contrary, during Respondent's tenure at Colson, her students consistently performed well academically as reflected by their scores on the Stanford Achievement Test, a nationally normed test. At all times relevant to this proceeding, the Stanford Achievement Test was used by the School District to assess first-grade students' achievement in the areas of mathematics and reading. At all times relevant to this proceeding, the test was administered to first-grade students at Colson in March or April of each school year. In March 2000, there were four first-grade classes at Colson. Of those four classes, Respondent's students made the highest scores in both the reading section and the math section of the Stanford Achievement Test. The results of the Stanford Achievement Test administered in April 2001, reflect that of the four first-grade classes, the students in Respondent's class made significantly higher scores in both reading and mathematics than the students in the other three first-grade classes. As of April 2002, Colson had six first-grade classes. Of the six first-grade classes, Respondent's class ranked first on the reading section and second on the mathematics section of the Stanford Achievement Test. Respondent's Annual Performance Evaluations The School District utilizes the Classroom Certificated Instructional Effectiveness Evaluation Form (Evaluation Form), which has been approved by the Hillsborough County School Board (School Board) as the instrument by which its teachers are evaluated. Typically, tenured teachers with professional service contracts are evaluated annually, but if the tenured teacher is experiencing difficulties in the classroom, the school administrator may evaluate the teacher more than once a year. At all times relevant to this proceeding, the Evaluation Form consisted of the following categories in which teachers are evaluated: Category I, Planning and Preparation, which includes six subsections or areas; Category II, Professional Behaviors, which includes 12 areas; Category III, Techniques of Instruction, which includes 15 areas; Category IV, Classroom Management, which includes seven areas; and Category V, Instructional Effectiveness, which includes one area. The Evaluation Form requires that the teacher's performance in each area be rated as "satisfactory," "needs improvement," or "unsatisfactory." The highest possible rating is "satisfactory," and the lowest rating is "unsatisfactory." In addition to the areas under the various categories in which teachers are rated, the evaluation requires that the teacher be given an "overall rating" of "satisfactory" or "unsatisfactory." As principal of Colson, one of Mrs. Clark's responsibilities was to supervise and evaluate the teachers at the school. Consistent with that responsibility, Mrs. Clark supervised and evaluated Respondent. Mrs. Clark evaluated Respondent once in the 1998-1999, 1999-2000, and 2000-2001 school years, usually in April. During the 2001-2002 school year, Mrs. Clark evaluated Respondent twice, in December 2001 and in March 2002. Mrs. Clark decided to evaluate Respondent twice in the 2001-2002 school year. Given Respondent's status as a tenured teacher and Mrs. Clark's "concerns over the years with her performance," by evaluating Respondent in the fall, Mrs. Clark would be able to give Respondent notice of the areas in which she still needed to improve. During the period between the fall evaluation and the spring evaluation, Respondent would have an opportunity to work to improve in those areas.2/ The ratings assigned to Respondent's performance on each of the Evaluation Forms are based on data that is collected by Mrs. Clark through her observations and while "walking into [the] classroom on a regular basis." The Administrative Complaint alleged that Respondent's evaluations for the 1998-1999 through the 2001-2002 school years indicated that she needed to improve in specified areas under the following categories: Category II, Professional Behavior; Category III, Techniques of Instruction; and Category IV, Classroom Management.3/ Although Respondent worked at Colson during the 2002-2003 School year, there is no evidence that she was evaluated that year as required by law. If an evaluation was completed for that school year, the Administrative Complaint does not allege that the evaluation indicated any areas in which Respondent needed to improve. Professional Behavior The Administrative Complaint alleges that Respondent received several evaluations from 1999 through 2002 that indicated she needed to improve in the following areas under the Professional Behavior category: 1) observes confidentiality related to students; 2) works cooperatively and supportively with school staff; and 3) responds reasonably to and acting appropriately to constructive criticism. With regard to the first area of concern, "observes confidentiality related to students," none of Respondent’s evaluations for the relevant time period, 1998-1999, 1999-2000, 2000-2001, and 2001-2002 school years, indicated that she needed to improve in that area. In fact, contrary to the allegations in the Administrative Complaint, all five of Respondent's evaluations for that time period indicate that her performance in that area was rated as "satisfactory." The second area under Professional Behaviors in which it is alleged that Respondent's evaluations indicated she needed to improve is "works cooperatively and supportively with school staff." Respondent's evaluations for her first three school years at Colson--1998-1999, 1999-2000 and 2000-2001--reflect that her performance in the area, "works cooperatively with school staff," was "satisfactory." However, after receiving "satisfactory" ratings in this area for three consecutive years, for the first time, Respondent's evaluation for the 2001-2002 school year indicated that Respondent needed to improve in this area.4/ The evaluations gave no reason for the "needs improvement" rating in the area, "works cooperatively with school staff," on Respondent's December 2001 and April 2002 evaluations. Although no specific basis for the rating is given on the evaluation, it is noted that these evaluations coincide with the area supervisor's observations. The third area under the Professional Behavior category in which it is alleged that Respondent received several evaluations that indicated she needed to improve is the area, "responds reasonably to and acts appropriately upon constructive criticism." Contrary to this allegation, none of Respondent's evaluations indicated that she needed to improve in this area. Rather, Respondent's performance in the area, "responds reasonably to and acts appropriately upon constructive criticism," was rated as "satisfactory" on all five of the evaluations she received during the relevant time period. Techniques of Instruction The Administrative Complaint alleges that Respondent received several evaluations that indicated she needed to improve in the following areas under the Technique of Instruction category: (1) uses instructional time efficiently; presents subject matter effectively; and (3) uses praise appropriately. Respondent's evaluations for the 1998-1999, 2000-2001, and 2001-2002 school years indicated that Respondent needed to improve in the area, "uses instructional time efficiently." As a possible rationale for the rating assigned in the 1998-1999 evaluation, Mrs. Clark wrote on the evaluation, "I am concerned about the slow pace of her lesson as well as the pacing through reading." The evaluations for the 2000-2001 and the 2001-2002 school years gave no rationale for the "needs improvement" rating in the area, "uses instructional time efficiently." Additionally, there is no indication that Mrs. Clark told Respondent the basis of the rating or offered any recommendations as to how Respondent could improve in this area. Upon Respondent's receiving the December 2001 and the March 2002 evaluations, she requested, in writing, a detailed written explanation of the basis for each of the "needs improvement" ratings, which included the area, "uses instructional time efficiently." There is no evidence that Mrs. Clark ever provided the requested explanation. Additionally, the evidence does not establish a basis for the "needs improvement" rating in this area. The next area at issue under the Techniques of Instruction category is, "presents subject matter effectively." Respondent's evaluations for the 1999-2000 and the 2000-2001 school years indicate that Respondent needed to improve in this area. However, neither the evaluation, nor any evidence at the hearing, offered or established a basis for this rating. On Respondent's evaluations for the 1998-1999 school year, and most recently for the 2001-2002 school year, her performance in the area, "presents subject matter effectively," was rated as "satisfactory." Clearly, the "satisfactory" ratings on the December 2001 and March 2002 evaluations, which were for the 2001-2002 school year, marked an improvement over Respondent's ratings in that category for the immediate prior two school years. Finally, it is alleged that the third area under the Techniques of Instruction category in which Respondent's evaluations indicated she needed to improve is, "uses praise appropriately." Respondent's evaluation for 1998-1999, her first year at Colson, indicated that she needed to improve in this area. The next three school years, however, Respondent's performance in this area improved to "satisfactory," as reflected by the four evaluations for the 1999-2000, 2000-2001, and 2001-2002 school years. Classroom Management Under the category, Classroom Management, it is alleged that Respondent's evaluations indicated that she needed to improve in the area, "enhances and maintains students' self- esteem." On Respondent's evaluations for the 1998-1999 and the 1999-2000 school years, her first two years at Colson, Respondent's performance in the area, "enhances and maintains students' self-esteem," was rated "satisfactory." Respondent's evaluation for the 2000-2001 school year indicated that her performance in the area, "enhances and maintains students' self-esteem," was unsatisfactory. It is specifically found that the Administrative Complaint makes no allegations regarding the "unsatisfactory" rating. Accordingly, except for limited purposes, issues related to that rating will not be addressed. Respondent's performance in the area, "enhancing and maintaining students' self-esteem," improved in the 2001-2002 school year from "unsatisfactory" to "needs improvement," as reflected in both her December 2001 and April 2002 evaluations. Instructional Effectiveness The Administrative Complaint does not allege that Respondent's evaluations reflect that she needs to improve in the Instructional Effectiveness category. However, in order to present a more complete picture of Respondent's performance, as rated on her evaluations, this category and Respondent's ratings thereunder are considered. The Instructional Effectiveness category includes only one area, "promotes academic learning which results in improved student performance."5/ This area is concerned with and assesses whether actual learning is taking place as a result of the teacher's instruction. 39. For the 1998-1999, 1999-2000, 2000-2001, and 2001-2002 school years, Respondent's performance in the area, "promotes academic learning which results in improved student performance," is rated as "satisfactory." Overall Rating Category Respondent's "overall rating" in all five of her evaluations for the 1998-1999, 1999-2000, 2000-2001, and 2001- 2002 was "satisfactory." 6/ Transfer of Student to Respondent's Class (January 2001) In January 2001, a student, F.R., was transferred to Respondent's class from another first grade class because of his behavioral problems. When such a transfer takes place, the teacher to whom the student is being transferred is given prior notice that the student is being assigned to her class. In this instance, that was not done. Respondent was not informed in advance that F.R. was being transferred to her class. On the first day the students returned to school from winter break, F.R. just "showed up" in Respondent's class. Later, Respondent was told that the child was transferred to her class because he was having peer conflict problems, and, as a result, he was acting out. Respondent was told that the student’s acting out behavior included such things as spitting on children, stabbing children with forks, knocking things off the children's desks, and having outbursts. Respondent thought this was a new chance for the child, and she attempted to make the new class assignment work. For example, rather than isolate the child, as his former teacher had recommended, Respondent assigned F.R. to a seat between two very well-behaved little girls, who she knew would never say anything mean to him. Despite Respondent's efforts to work with F.R., he exhibited lashing out and angry behaviors. Due to F.R.'s exhibiting lashing out behavior, Respondent was concerned for the safety of the other students in the class. In January or early February 2001, Respondent shared her concern with Mrs. Clark and asked that F.R. be removed from her class. Mrs. Clark responded that F.R. was just a little boy and said, "Let's see how he does." No offers for assistance were made, and Respondent felt that her request was simply ignored. Later, in January or early February 2001, as Respondent's class lined up and walked to the lunchroom, F.R. deliberately "high stepped and slid on the heels" of the child in front of him. When Respondent asked F.R. to stop, he just laughed, looked at Respondent, and repeated the behavior. Respondent told F.R. to stand out on the side of the line and walk with her. At first he complied, but then he started to get back in the line. Respondent then told F.R., "You're walking with me." After F.R. ignored Respondent, she took his hand so that he could walk with her. F.R. then yanked and pulled Respondent's fingers back, kicked Respondent "really hard" in the upper ankle, and "took off running." Respondent reported the incident to Mrs. Clark and the vice-principal and completed an incident report, reporting her injury and indicating her belief that F.R.'s behavior described in paragraph 44 constituted an assault/battery. After the incident, Respondent again asked Mrs. Clark to transfer F.R. from her class. Mrs. Clark never responded to Respondent's request. In fact, Mrs. Clark never talked to Respondent about the incident. Some time after the February 21, 2001, observation discussed below, there was a second incident where F.R. was physically aggressive toward Respondent. F.R. ran out of the lunchroom to return to the classroom to get the check he had forgotten. Concerned about his past behavior of destroying and "messing up" the other children's belongings, Respondent went to get F.R. Before Respondent could get to the classroom, F.R. had gotten the check and was running back to the lunchroom and toward Respondent. Respondent stuck her arm out to stop him and he continued running around her. Once in the lunchroom, Respondent "pulled" or "grabbed" the check from F.R.'s hand and asked the aides in the lunchroom to call Mrs. Clark. F.R. then seemed to explode, and he began punching Respondent with his fists and biting her. By the time the assistant principal got to the lunchroom, four students had pulled F.R. off Respondent, and Respondent was holding F.R.'s hand. When the vice-principal arrived, she did not discuss the incident with Respondent, but began screaming and told Respondent, "Go, get out of here, leave!" Following the lunchroom incident, Respondent filed another assault report and, for the third time, asked Mrs. Clark to transfer F.R. from her class. After there was no response to her verbal request, a union representative advised Respondent to make the request in writing. Initially, Mrs. Clark denied the request because it was not on the proper form, but once Respondent made the request on the appropriate form, F.R. was transferred from her class. Prior to the requests related to F.R., Respondent has never requested that a student be transferred from her class. Observations of Area Supervisor Ms. Daryl Saunders, an area supervisor for the School District, went to Respondent's classroom on five different occasions between February 21, 2001, and March 21, 2002, twice during the 2000-2001 school year, and three times during the 2001-2002 school year, to conduct observations. On a visit in February 2002, Ms. Saunders did not conduct an observation. With the exception of the first visit to Respondent's classroom, all of Ms. Saunders' visits were for the purpose of observing Respondent. Of the four times Ms. Saunders went to observe Respondent, she actually conducted observations three times. First Observation (February 21, 2001) Ms. Saunders' first visit to Respondent's classroom was on February 21, 2001. At the request of Mrs. Clark, Ms. Saunders went to Respondent's classroom to observe a student, F.R., who had been displaying inappropriate behavior in class and is described above.7/ During the time Ms. Saunders observed F.R., he did not have any outbursts, engage in any physically aggressive behavior, or display any disruptive or inappropriate behaviors. Ms. Saunders noted that the student delayed starting his assignment and took breaks between work, but did not bother any other student. Based on her observation of F.R. and the manner in which Respondent communicated with him, Ms. Saunders wrote in the summary letter to Mrs. Clark, "I believe F.R. is trying to survive in a room where he feels he is not valued." While Ms. Saunders was observing F.R., she also observed Respondent teaching and interacting with the students. Ms. Saunders was particularly concerned with Respondent's frequent verbal reprimands that were audible to the entire class. During the observation, Ms. Saunders also noticed that Respondent seemed to be easily frustrated and that when communicating with students, her voice vacillated between a friendly tone to an aggressive tone. Ms. Saunders expressed this and other concerns, not relevant to this proceeding, to Mrs. Clark in a letter dated February 22, 2001. According to the letter, a verbal reprimand to a particular student in front of the entire class is "damaging to [a] student's self-esteem." Ms. Saunders further noted that "considering the environment, I was surprised there were no behavioral issues while I was present." In the February 22, 2001, letter to Mrs. Clark, Ms. Saunders recommended that "we provide [Respondent] with some assistance so that the classroom environment is more conducive for instruction and learning." As a means of supporting Respondent in this effort, Ms. Saunders recommended that Mrs. Clark "have [Respondent] take two courses through the staff development office." The two classes that Ms. Saunders recommended were Cooperative Discipline and Effective Teaching Strategies. Finally, Ms. Saunders' letter stated, "the Language Arts Frameworks document should be reviewed with [Respondent]." There is no indication that Mrs. Clark discussed these recommendations. Second Observation (May 7, 2001) At Mrs. Clark's request, Ms. Saunders visited Respondent's classroom on May 7, 2001, to observe Respondent's teaching practices. This was about two weeks after Respondent received her evaluation for the 2000-2001 school year, which had rated her performance as unsatisfactory in the area of "enhancing and maintaining student's self-esteem." Pursuant to an earlier suggestion by Ms. Saunders, Respondent allowed herself to be videotaped in order that she could better critique her own behavior in the classroom. To implement this recommendation, the school's media specialist was in the classroom to set up the video equipment on the day of Ms. Saunders' observation. Soon after Ms. Saunders arrived, the media specialist asked Respondent if she should put the tape in the video recorder. Respondent answered, "Please, I don't want to be accused of using three minutes of my time up." Ms. Saunders believed that Respondent's tone of voice was "unprofessional" and that the comment was directed at her. During the May 7, 2001, observation, a student who was speaking to other students in a group had her back to them. Respondent's voice "became aggravated" as she told the student to turn around. Respondent placed her hands on the student's shoulders and physically turned her, but did not do so forcibly. During the May 7, 2001, observation, Ms. Saunders noted improvement in Respondent's communication with her students. In her written summary of the observation dated May 16, 2001, Ms. Saunders wrote: Based on that first encounter [February 21, 2001], I would say my greatest concern was how you communicated with both students and adults. However, this time your demeanor in front of the children was quite different than when I last observed in your classroom. I believe having the video camera present helped to keep you focused on appropriate communication with the children. I was pleased to hear more of a pleasant tone. Ms. Saunders' summary also stated that she counted four times when Respondent appeared to become frustrated and her tone of voice changed to a negative one. Ms. Saunders' summary of the May 7, 2001, observation included the following recommendations: One way to support and assist you regarding classroom environment, instruction and planning would be to have someone review with you, the six domains from the Florida Performance Measurement System. This information is based on research and would be beneficial to again cover. In addition, I recommend that you attend training provided by the elementary education department specifically in the area of writing. Enrollment can be done on-line. . . . There are many courses offered this summer. The Language Arts Frameworks document should also be reviewed. This will provide information about our district's curriculum and the writer's workshop model. Other staff development offerings related to classroom management are offered periodically through the staff development office. I suggest you take one of their courses to assist you with classroom management. You can register on line any time. . . . In the May 16, 2001, summary, Ms. Saunders notified Respondent that she planned to observe Respondent's classroom again soon. Additionally, Ms. Saunders indicated that she expected to see "appropriate and timely instruction and activities based on student need and planned from grade level expectations." Third Observation (December 6, 2001) Ms. Saunders conducted the third observation on December 6, 2001, seven months after the previous observation. Ms. Saunders summarized her observations in a letter dated December 17, 2001. In the letter, Ms. Saunders advised Respondent, for the first time, that the December 6, 2001, observation was part of a plan to assist Respondent with teaching practices. On December 6, 2001, Ms. Saunders arrived at Respondent's classroom at 8:30 a.m. and stayed until 9:10 a.m., when the children left the room for an activity. During the 40-minute observation, Ms. Saunders heard Respondent communicating with students and observed her conducting a review of telling time. Ms. Saunders was complimentary of Respondent's review of telling time. In the written summary to Respondent, Ms. Saunders wrote: You try hard to provide ways for students to remember abstract concepts. You use pneumonic devices, short stories, rhymes and other ways to assist with memorization. By calling the numbers bases and relating the time to the name of the base they passed, students more accurately read time when the short hand falls somewhere between two numbers. This seemed quite effective. Ms. Saunders observed an incident which she perceived to be negative. There was a student who was off task. Respondent directed her attention to the student and asked the student, "Would your mother [or family] be proud of you?" Ms. Saunders believed that when Respondent made this statement, her voice "sounded with disapproval." Ms. Saunders suggested that in the situation described in paragraph 66, Respondent should have "encouraged" proper behavior by asking the student a question that would have him participate so that he becomes on task rather than off task. In another situation, Ms. Saunders observed Respondent interact appropriately and effectively with a student she was reprimanding. In that case, Respondent asked the student, "What time is it?" Before that student could answer, another student shouted out the answer. Recalling Respondent's positive response in that situation, Ms. Saunders stated the following in the December 17, 2001, summary: A boy shouted out the answer and you began to reprimand him. You began to speak, stopped yourself, and continued with this carefully crafted sentence. "Tell me the rule about calling out." It was nice to see you stop yourself in mid-stream, rethink a way to correct this misconduct while still preserving the child's dignity. Based on the December 6, 2001, observation, Ms. Saunders had two areas of concern, only one of which is relevant in this case. That area relates to Respondent's "appropriate use of instructional time." Ms. Saunders' concern is stated in the summary as follows: In my opinion, a second area of concern relates to planning and appropriate use of instructional time. I entered your room at 8:30 and the instructional day begins at 8:00 a.m. Instruction in your room did not begin until 8:44 and the fifteen minutes suggested for calendar math was stretched to 21 minutes. I suggest you utilize time more wisely by beginning calendar math immediately after announcements. Then spend the rest of the morning on shared, guided and independent reading when youngsters are fresh and ready to learn. Beginning instruction nearly 45 minutes after the day begins will allow you to cover all the curriculum. Although the "instructional day," to the extent that term refers to Respondent's teaching a lesson to the class, did not begin at 8:00 a.m., or soon thereafter, there was a reasonable explanation for the delay. First, three students were assigned to Respondent's class that day because their regular teacher was absent. Prior to beginning instruction, Respondent met with those students, asked them their names, assigned them desks, and explained her classroom management system. Respondent's classroom management system involved giving each student a certain number of clothes pins at the beginning of the day. During the school day, the students could lose and/or earn clothes pins, depending on their conduct. The second reason for the delay in beginning the instructional day was that several students in Respondent's class had been allowed to go to the media center to "Santa's Book Fair." As Ms. Saunders noted in her written summary, several of Respondent's students did not return to the classroom from the book fair until 8:36 a.m. In light of the foregoing circumstances, it was reasonable that Respondent did not begin the "instructional day" at 8:00 a.m., or immediately after announcements were made. Admittedly, Ms. Saunders did not know what, if any, instructions or directions Respondent gave to students prior to 8:30 a.m. However, when Ms. Saunders entered Respondent's classroom, the students were actively engaged in various activities. For example, one student was working on math worksheets. Another student was at the computer taking an Accelerated Reading test. Respondent was working with the student at the computer. In addition to Ms. Saunders' concern that the instructional day did not begin until 8:44 a.m., she believed that Respondent spent too much time teaching the "calendar math" activity. Respondent began the activity at 8:44 a.m., and completed it at 9:05 a.m. Even though Ms. Saunders complimented Respondent on her presentation of the activity, as discussed in paragraph 65, she criticized Respondent for spending too much time teaching or reviewing the lesson. According to Ms. Saunders, the "suggested" time for "calendar math" was 15 minutes, but Respondent "stretched" the activity to 21 minutes, which was six minutes longer than the "suggested" time. Ms. Saunders offered no explanation of why or how Respondent's extending the calendar math activity by six minutes was not an "appropriate use of instructional time." At 9:10, a.m., five minutes after the calendar math lesson, Respondent's students had to leave the classroom to attend a health presentation. The five minutes between the end of "calendar math" and when the children left the classroom for the health presentation, allowed time for the children to return to their seats and for Respondent to pass out name tags to the students and have them line up before leaving the room. Ms. Saunders offered no suggestions as to a more appropriate or acceptable way Respondent could or should have used the extra six minutes that Respondent used teaching the calendar math activity. Ms. Saunders summarized the December 6, 2001, observation and made recommendations in a letter dated December 17, 2001. Based on Ms. Saunders' concerns about Respondent's teaching practices, Ms. Saunders recommended that Respondent "have someone review with [her] the six domains from the Florida Performance Measurement System." Also, she recommended that Respondent take training provided by the elementary education department and a classroom management course, both of which were offered "periodically" through the staff development office. Attempted Observation (February 2001) On an unspecified day in February 2002, Ms. Saunders went to Respondent's classroom to conduct her fourth observation. After Ms. Saunders entered the classroom, Respondent told her that she had no notice of the observation. Ms. Saunders then advised Respondent that Mrs. Clark knew that Ms. Saunders would be observing Respondent's class that day, but that "neither of us [Saunders nor Clark] chose to make you [Respondent] aware of the visitation." Respondent espoused the view that she should have received notice of the observation. Ms. Saunders disputed Respondent's view that she should have been given notice and indicated that the observation was part of the assistance plan laid out in May 2001. Respondent replied that an assistance plan could only last 90 days and, thus, this observation could not be part of any such plan. Ms. Saunders then asserted that she could do an observation any time as part of her normal duties. Respondent disagreed and requested that Ms. Saunders provide her with a written explanation of the reason why Ms. Saunders was visiting the class, the instrument she would be using, what she would be observing, and how long she would be staying. As the verbal interchange proceeded, Ms. Saunders thought that Respondent's voice became more aggressive and that she was also getting upset. Because Respondent's students were in the classroom, Ms. Saunders decided to leave the classroom and return at another time. Although students were in the classroom during the verbal exchange concerning whether Ms. Saunders' visit was authorized, there is no evidence that the students heard the conversation. Fourth Observation (March 21, 2002) On March 21, 2002, Ms. Saunders conducted an observation in Respondent's classroom. Upon Ms. Saunders' entering the room, Respondent advised her that she had no notice that Ms. Saunders was coming to her class. Respondent also told Ms. Saunders that the students were taking a school-wide writing assessment. Ms. Saunders acknowledged that, but still indicated that she would be seated and conduct an observation. Respondent then approached Ms. Saunders and asked why she was in the class, what instrument she was using, and what she was observing. Ms. Saunders reiterated her prior position that she was there as part of the assistance plan and that she would be taking anecdotal notes. Respondent then asserted her earlier position, that an assistance plan was only for 90 days. Consistent with Ms. Saunders' previous recommendation that Respondent tape herself in class as a way to critique herself, Respondent told Ms. Saunders and the class that she was turning on the tape recorder. Ms. Saunders began the observation at or about 8:58 a.m., and ended it at 9:16 a.m. In all, the observation lasted only about 18 minutes. During most of that time, Respondent's students were completing a school-wide writing assessment. As students finished the writing assessment, Respondent gave them books to read silently, while the other children continued to work on the writing assessment. Ms. Saunders summarized the March 21, 2002, observation in a letter dated April 18, 2002. Due to the duration of the observation, 18 minutes, and the fact that the students were taking a writing assessment, Ms. Saunders reported only a few specific observations. None of those observations concerned or were related to Respondent's teaching techniques or classroom management.8/ In the April 18, 2002, letter, Ms. Saunders summarized the March 21, 2002, observation and made conclusions. In the letter, Ms. Saunders stated she continued to see the "same behaviors" from Respondent. She further stated, Each time I visit your classroom I continue to see the same behaviors from you. Though discussion has occurred regarding ineffective practices, visitation were made to a number of other classrooms at Yates Elementary, suggestions regarding inservice courses have been made, yet your practices have not changed. I continue to see an emphasis on students being silent unless called upon. I continue to hear you speak gruffly to students. I continue to see you punish students for very minor infractions like wiggling or whispering. I continue to see you isolate students from the group. I continue to see you go over concepts, like vocabulary orally in order for students to memorize things rotely. I continue to see calendar math exceed the 15 minutes it is intended to occupy of the mathematics instructional time. I continue to see only one student engaged at a time. It was the intention of the assistance plan to have you reevaluate some of your ineffective practices and work to make some changes. I have yet to witness any of that nor do I think you are even trying to make strides toward improvement. Despite her recitation of areas in which Respondent still needed to improve, Ms. Saunders offered no recommendations in the April 18, 2002, summary letter to assist Respondent. However, Ms. Saunders stated that she "plan[ned] to make an unannounced observation in [Respondent's] class again soon," but she never did. The conclusions in Ms. Saunders' April 18, 2002, letter are inconsistent with some of her earlier observations discussed in paragraphs 59, 65, and 68 above. Moreover, there was no connection between the conclusion Ms. Saunders articulated in the summary letter and what she observed on March 21, 2002. Area Supervisor's Criticism of Respondent's Reprimand Method Ms. Saunders was critical of the way Respondent reprimanded students. During Ms. Saunders' observations, Respondent sometimes would call the name of the child who was being reprimanded and tell him what he should or should not be doing. At the hearing, Ms. Saunders testified to maintain order in the classroom, Respondent should have used "public praise" and "private criticism." Notwithstanding this position, Ms. Saunders admitted that this method or principle is not an established policy and procedure of the School District. While Ms. Saunders testified that the "public praise, private criticism" principle is simply an "educational belief that many people subscribe to," she acknowledged that other models exist. There was no evidence presented at the hearing that Ms. Saunders ever specifically discussed the "public praise, private criticism" philosophy that she believed Respondent should have used in the classroom. Observations of the School Principal Mrs. Clark frequently observed Respondent in the classroom as part of her routine of visiting all the classrooms at Colson. During her observation of Respondent, Mrs. Clark saw and heard Respondent sometimes use a "harsh desist" in reprimanding students. According to Mrs. Clark, the term "harsh desist" means "harshly reprimanding a child to stop doing something." Mrs. Clark described an example of a "harsh desist" by Respondent's saying, "Shhhh" to the class in a loud way, and talking to children in a way that was "derogatory." Mrs. Clark believed that the children were impacted by the way Respondent spoke to them. She based this belief on the expressions she saw on some of the children's faces. Mrs. Clark testified, "In some instances, they [the students] would cringe." Mrs. Clark testified that she talked to Respondent about her "harsh desist," but Respondent did not change this classroom management method. These discussions were not documented, and no reference to this issue was ever noted on Respondent's evaluations. The record fails to establish when or how often Mrs. Clark observed Respondent engaging in a "harsh desist," to whom any particular "harsh desist" was directed, and if and how the "harsh desist" affected the student. Mrs. Clark testified that she observed situations in which she observed Respondent talk to students in a derogatory manner. In one instance, the student referred to in paragraph 41 above, who had been transferred to Respondent's class because of behavioral problems he was having in another class, left Respondent's classroom without permission and was returned to the room by Mrs. Clark. The student told Mrs. Clark that he had left the room to look for a pencil or scissors. Mrs. Clark asked Respondent if the student could borrow one from another student or if she would give him the tool that he needed. Respondent said she would not give him the particular tool. Respondent continued, "He breaks them all the time. He doesn't deserve them." Although students were in the classroom when Respondent made the comments, there is no evidence that they heard the comments. The other incident in which Mrs. Clark described Respondent as using derogatory language when talking to a student involved T.B., a student in her class. On an unspecified date, Respondent was walking down the hallway with her students, taking them to the buses. Respondent was holding T.B. by his arm, presumably for misbehaving. At the time, Mrs. Clark was in the hallway, but some distance away. When Respondent saw Mrs. Clark in the hallway, she told T.B., "If you don't behave, you're going to get a referral to that lady over there," pointing to Mrs. Clark. Mrs. Clark testified that there is nothing wrong with reminding a child that he could have to go the principal's office if he or she misbehaves, "if it [is] handled in the appropriate way." The clear implication was that the manner in which Respondent handled the situation described in paragraph 98 was inappropriate. However, no evidence was presented to establish the appropriate way to remind the student that his behavior needs to improve and that there are consequences for misbehavior. Recommendations of Mrs. Clark Respondent's 2000-2001 evaluation indicated that her performance in the area, "enhances and maintains students' self-esteem," was unsatisfactory. To address this rating, Mrs. Clark issued a letter to Respondent which made two recommendations to assist Respondent in improving in this area. The letter is referred to on the evaluation and was given to Respondent on or about April 24, 2001, the day she received the 2000-2001 evaluation.9/ The first recommendation was that Respondent attend a Cooperative Discipline Workshop that was offered by the School District or "something similar to that that was offered by the district." The other recommendation was that Respondent go and observe behavior management in classrooms at other schools. No specifics were given as to who would schedule the time, place, and number of observations. With regard to the classroom management course, no information was provided as to what, if any, approval would be needed prior to taking the course. In neither instance was a time specified that Respondent would have to complete the observations and/or the classroom management course. During Respondent's tenure at Colson, the only written recommendations she received from Mrs. Clark were the two made in the letter issued to Respondent. As reflected on the 2000-2001 evaluation, Mrs. Clark issued the letter to address the "unsatisfactory" rating Respondent received in that evaluation. In such a case, a tenured teacher who receives an "unsatisfactory" rating, a letter and/or form of assistance is required to be provided pursuant to Section 1012.34(3)(d), Florida Statutes. Respondent's Efforts to Comply With Assistance Plans and/or Recommendations In an effort to comply with Mrs. Clark's recommendation that she observe other classes, Respondent asked several teachers on her first-grade team, including one who was nationally-certified, if she could observe them. Some of these teachers had been held out by Mrs. Clark as using behavioral models that were ones that Respondent might use in her class. All of the teachers agreed to allow Respondent to observe their classes, but Mrs. Clark denied Respondent's request to observe any of the teachers at Colson. Eventually, someone, likely Ms. Saunders or Mrs. Clark, scheduled an observation for Respondent at Yates Elementary School (Yates). On an unknown date between May 7, 2001, and December 6, 2001, Respondent went to Yates to observe several first-grade classes pursuant to Mrs. Clark's April 24, 2001, recommendation. Ms. Saunders accompanied Respondent to the class for the observations. As Respondent and Ms. Saunders went to observe in the various classrooms, it appeared to Respondent that the teachers in those classrooms had no prior knowledge of the observations. During the observations at Yates, Ms. Saunders directed Respondent to write down anything positive she saw regarding classroom management, as well as anything she found pedagogically unsound.10/ Ms. Saunders referenced and discussed Respondent's observations at Yates in the summary letter dated December 17, 2001. In that letter, Ms. Saunders recalled the following: During the visit to Yates, we witnessed some wonderful classroom strategies and we also saw some things that perhaps would not be helpful. I know, based on our conversation, that you saw some things that you might like to try implementing. I hope that you will continue to reflect on that day and try some of the things you think might work well in your room. Ms. Saunders also noted in the December 17, 2001, letter that at the time of the visit to Yates, she asked Respondent to write a plan that included trying or applying some of the classroom management strategies that they witnessed. Respondent complied with this directive as reflected in Ms. Saunders' letter in which she stated, "A copy of that plan was to be given to Mrs. Clark[,] and I am aware that you submitted something to her." As requested by Ms. Saunders, Respondent submitted a classroom management plan to Mrs. Clark based on what she observed at Yates that she could implement in her classroom. However, there is nothing in the record to indicate whether Respondent's plan was ever reviewed or critiqued by either Mrs. Clark or Ms. Saunders. After Mrs. Clark recommended that Respondent take a classroom management course, she attempted to do so, but was unsuccessful. Respondent's initial failure to take the classroom management course after the April 2001 evaluation, was based on a misunderstanding, miscommunication, and/or no communication between Mrs. Clark and Respondent. Later, Respondent's efforts to take a classroom management course were thwarted by Mrs. Clark. The misunderstanding, miscommunication, and/or lack of communication between Mrs. Clark and Respondent is evident. Almost eight months after Mrs. Clark initially recommended that Respondent take a classroom management course, she wrote in the "comment section" of Respondent's December 19, 2001, evaluation that she was "not sure" if Respondent had taken the course. In response, Respondent wrote on the same evaluation, "It was my understanding that a workshop would be scheduled for me during the school year." Mrs. Clark testified that Respondent had "repeatedly kept asking" for which workshop Mrs. Clark had signed her up. Based on the apparent misunderstanding discussed in paragraph 109, Respondent selected at least two different classroom management courses. She then requested Mrs. Clark's consent, because the course required payment of a fee and a substitute teacher for the time Respondent would be attending the course. Both courses were approved by the Hillsborough County School Board. Although in the 2001-2002 school year, Respondent made several requests to take a management course, Mrs. Clark denied all the requests, indicating that no money was available. In one case, a person from the School District office called Respondent and told her that no money was available for her to attend the courses she had requested. The payment for one of the courses was about $135.00 and required that a substitute teacher be hired to cover Respondent's class on the day of the course. Having been unsuccessful in obtaining permission or approval to attend two School Board-approved courses, on September 20, 2002, Respondent wrote an e-mail letter to Mrs. Clark regarding Respondent's efforts to take a classroom/behavior management course. In the e-mail, Respondent indicated that she had looked to take the recommended course on a professional study day (when students are not present), but had not found any such course being offered. In light of Mrs. Clark's and/or the School District's failure to approve a course for Respondent to take, Respondent requested that Mrs. Clark provide Respondent with the name of the classroom/behavior management course that Mrs. Clark wanted her to take and the date and time of such course. There is no evidence that Mrs. Clark ever responded to Respondent's September 20, 2002, e-mail or ever provided Respondent with the name of a classroom management course to attend. Moreover, no evidence was presented that the School District actually offered the recommended classroom management course during the relevant time period. Despite the recommendation that Respondent take the classroom/behavior management course, she was not provided with the assistance and in-service opportunity to help correct or improve the noted performance deficiency. Nonetheless, through her own effort, she increased her performance area, "enhances and maintains students' self-esteem," from "unsatisfactory" in the 2000-2001 school year to "needs improvement." Incidents Involving Respondent and School Principal and Staff First Incident (January/February 2001) In January or February 2001, during the lunch break, Vicki Davis, one of the other first-grade teachers, was sitting near Respondent and noticed that Respondent was writing in a notebook. Ms. Davis then asked Respondent, "What are you doing? Writing about kids or something?" Respondent did not elaborate, but told Ms. Davis that it was a behavior book. Ms. Davis was concerned because she saw her name in the book, but beyond that, she could not say what was in the book. Exactly what Respondent was writing in the "behavior book," is unknown, but this incident occurred soon after the student referred to in paragraph 41 was transferred from Ms. Davis' class to Respondent's class. Respondent implied that she was writing down observations about the child. Even though the precise contents of the "behavior book" were not clearly visible, Ms. Davis felt uncomfortable when she saw what she believed to be her name in the "behavior book." Second Incident (July 2001) In July 2001, when school was not in session, Respondent telephoned the school and asked Mrs. Clark to provide her with a report that Ms. Saunders had prepared. Before leaving the school, Mrs. Clark advised Jennifer Connolly, her secretary, that Respondent was coming to get the report and told Ms. Connolly to put the report in Respondent's mailbox. When Respondent arrived at Colson, she checked her mailbox, but did not see the report that she had come to retrieve. At the time, no one was in the front office area so Respondent went into Mrs. Clark's office and looked on her desk for the document. While Respondent was in Mrs. Clark's office looking through papers in an effort to locate Ms. Saunders' report, Ms. Connolly saw Respondent and asked why she was in the office. After Respondent explained that she was looking for Mrs. Saunders' report, Ms. Connolly told Respondent the report was in Respondent's mailbox and to leave Mrs. Clark's office. Ms. Connolly left the office and walked down the hall. After Ms. Connolly left Mrs. Clark's office, Respondent turned out the light in Mrs. Clark's office and closed the door to the office as she exited. By the time Respondent got to her mailbox, Mrs. Saunders' report was on top of the stack of mail in Respondent's mailbox. After being informed about Respondent's going into her office, Mrs. Clark contacted the School District's Professional Standards Office. An investigation was conducted and based on the findings, a letter was issued to Respondent. It is unknown if the letter was a warning, reprimand, or other type of communication since the letter was not offered as evidence at this proceeding. There is no indication that Respondent was doing anything in Mrs. Clark's office other than looking for the report that she came to the school to retrieve; the report that Mrs. Clark had expected her to pick up. Nonetheless, Respondent's decision to go into the principal's office, without permission, reflected poor judgment on her part. This, however, was an isolated incident and is not indicative of Respondent's usual judgment. Except for this incident, Respondent's record indicates that she usually exercised good judgment as shown by her evaluations for the relevant time period. For example, for the three school terms immediately prior to the July 2001 incident, Respondent's performance in the area related to a teacher's judgment under the Professional Behavior category, "demonstrates logical thinking and makes practical decisions," was rated as "satisfactory."11/ The only evaluation that indicated Respondent "needed to improve" in that area was the December 2001 evaluation, the first evaluation she received after the July 2001 office incident. However, in Respondent's very next evaluation dated April 24, 2002, her performance in the area, "demonstrates logical thinking and makes practical decisions," was rated as "satisfactory." Third Incident (2001-2002 School Term) In or about the 2001-2002 school year, Respondent brought a tape recorder to a team meeting. When Ms. Davis, one of the team members, saw the tape recorder, she felt uncomfortable and told Respondent to turn off the tape recorder.12/ Ms. Davis knew that "something was going on between [Respondent] and Mrs. Clark" and seemed to suspect that Respondent's bringing the tape recorder into the meeting was somehow related to that. However, Ms. Davis did not want to be a part of that and told Respondent, "This [meeting] is not about anything. We're working together as a team." Respondent immediately complied with Ms. Davis' request and turned off the tape recorder. After that one incident, Respondent never again brought a tape recorder to a team meeting. Fourth Incident (February 25, 2003) On or about February 25, 2003, as part of her usual routine of visiting classrooms, Mrs. Clark went to Respondent's classroom, entering from the back door. At the time, Respondent was sitting with two students, working with them. When Respondent saw Mrs. Clark, she got up from her seat and walked over to where Mrs. Clark was standing. Respondent then asked Mrs. Clark, "Did you leave right after us?" Mrs. Clark correctly understood, and Respondent confirmed that the question referred to Respondent's grievance hearing that was held the previous day and attended by Respondent and her attorney, as well as Mrs. Clark and the area supervisor. Respondent apparently thought Mrs. Clark indicated that she had left immediately after the grievance hearing. Respondent challenged Mrs. Clark and indicated that Respondent and her attorney had waited outside for Mrs. Clark for 15 minutes. Respondent then moved closer to Mrs. Clark and whispered in her ear. Mrs. Clark understood Respondent to say, "You're a liar. You're devious. There is a God. I'm not through with you yet." Respondent denied that she made these statements. Given the conflicting testimony of Mrs. Clark and Respondent, both of whom appeared to be credible witnesses, there is no clear and convincing evidence that Respondent made the statements. Nonetheless, it is found that Mrs. Clark understood and believed that the statements in paragraph 130 were the ones Respondent whispered to her. Mrs. Clark responded to Respondent's statements in a voice that was not a whisper by asking, "You're not through with me yet?" According to Mrs. Clark, during this incident, she repeatedly kept turning to Respondent and kept telling her, "If you have something to say to me, we can meet in my office." There were children in Respondent's classroom during the incident described in paragraph 130, but Mrs. Clark's credible testimony was that the children could not hear Respondent's comments. Mrs. Clark described the comments Respondent whispered in her ear as "quite upsetting." While Mrs. Clark might have been upset, her conduct clearly indicated that she did not feel threatened by Respondent's comments. After the exchange between Respondent described in paragraphs 130 and 131, Mrs. Clark stayed in Respondent's classroom to continue her visit and look at the children's work. In fact, Mrs. Clark took time to talk to a student in the class who she believed was not working. Later, she asked the children about a large crayon that was on the floor. At some point during the visit, Respondent noticed that Mrs. Clark was holding something in one of her hands, both of which were behind her back. Believing that the object in Mrs. Clark's hand was a tape recorder, Respondent grabbed Mrs. Clark's hand and splayed it open in an attempt to completely display the object. As Respondent grabbed Mrs. Clark's hand, she asked Mrs. Clark if she had a tape recorder and if she were recording Respondent. Mrs. Clark stated that the object she was holding was a two-way radio. Even though the object Mrs. Clark was holding was a two-way radio, Respondent did not believe Mrs. Clark's explanation. After or as Respondent grabbed Mrs. Clark's hand, Mrs. Clark told Respondent, "Get your hands off me! Get away from me!" Respondent believed Mrs. Clark was going to strike her so she moved back, away from Mrs. Clark. Undoubtedly, Respondent's conduct, described in paragraph 134, grabbing her supervisor's hand, was inappropriate, unprofessional, and disrespectful. However, based on the record, this was clearly an isolated incident. Moreover, this conduct does not constitute any of the statutory or rule violations alleged in the Administrative Complaint. Mrs. Clark then left Respondent's classroom and continued visiting other classrooms. After completing her routine classroom visits, Mrs. Clark called the School District office to report the February 25, 2002, incident in Respondent's classroom. Respondent also called the School District office to report the incident. In addition to calling the School District Office, Respondent called a friend who was a retired teacher and reported that she believed Mrs. Clark had tried to record her and asked for advice on what she should do if Mrs. Clark returned to her room. The following day, an investigator with the School District went to the school to investigate the matter. School District Request for Fitness for Duty Evaluation By letter dated April 30, 2003, the School District referred Respondent to Dr. James Edgar, M.D., a psychiatrist, for an evaluation. In the referral letter, Linda Kipley, the general manager of the School District's Professional Standards Office, stated that the referral was due to the School District's "concerns for a pattern of personal and professional behavior which has negatively impacted her capability and competence to perform the duties and responsibilities of teaching." Ms. Kipley's letter went on to say, "After reviewing our most recent investigative report, there is a question if she is fit for her teaching responsibilities and to teach minor children." Also, Ms. Kipley requested that Dr. Edgar provide a written report of his assessment of Respondent's "capability to make sound professional judgments and her capability to safely instruct children." Opinion of James Edgar, M.D. Dr. James Edgar, who was qualified as an expert in the field of psychiatry, conducted an independent medical (psychiatric) evaluation of Respondent. Based on information provided to Dr. Edgar by School District staff, there were questions raised about Respondent's ability to safely instruct minor children and about her general mental health status. Along with the request for the evaluation, the School District provided Dr. Edgar with copies of all of Respondent's evaluations since she was employed by the School District and the February 22, May 16, and December 17, 2001, letters/reports from Ms. Saunders. For some reason, Ms. Saunders' last report dated April 18, 2002, and discussed in paragraphs 85 and 86, was not provided to Dr. Edgar. Dr. Edgar found that Respondent had normal motor activity and normal facial expressions; that she was polite and her appearance was neat; and that she was calm although anxious (which Dr. Edgar indicated was a natural reaction under the circumstances of an evaluation being ordered by her employer). He also found that Respondent's intelligence was normal, her memory was intact, her senses were good, her affect was appropriate, and there was no evidence of hallucinations. Notwithstanding the foregoing conclusions, in the "summary and recommendation" section of his report, Dr. Edgar opined, I do not feel [Respondent] is currently capable of safely instructing young children." As the basis for this conclusion, Dr. Edgar stated that when Respondent is stressed by routine events, such as constructive criticism, her ability to keep things orderly and controlled is impaired and she becomes anxious and depressed. He further stated that the combination of Respondent's "major depression and pre-existing personality disorder interfere with the usual psychological functions (i.e. judgment and problem solving ability, emotional stability, ability to conform to societal standards of behavior, interpersonal skills, integrity, responsibility, ability to cope with stressful situations, and decision making in a crisis). In the "summary and recommendation" section of Dr. Edgar's written report, he prefaces the above-quoted opinion by stating, "This summary is provisional because I have not had an opportunity to review medical records or mental health records." At the end of the report, Dr. Edgar states that "I may amend my report after reviewing the previously mentioned records." As of the date of this proceeding, Dr. Edgar had not yet reviewed any of Respondent's medical records and mental health records, although Respondent advised him that she was being treated for depression by a psychiatrist and was in counseling with a licensed mental health professional. Contrary to the School District's concern for Respondent's "competence to perform the duties and responsibilities of teaching," Dr. Edgar testified that his report made no finding that Respondent was incompetent to teach. Opinion of Gerald Mussenden, Ph.D. Dr. Gerald Mussenden was qualified as an expert in the area of psychology. On September 5 and 12, 2003, Dr. Mussenden conducted a comprehensive evaluation of Respondent to determine her overall mental functioning (i.e., whether she was mentally stable, well adjusted, and/or if she is a threat to herself or others). As part of the evaluation, Dr. Mussenden administered, among other instruments, the Child Abuse Potential Inventory, which has been developed and standardized since 1982. The Child Abuse Potential Inventory is valid in terms of content validity, construct validity, and predictive validity and is a tool used by psychologists who do testing specializing in abuse propensities. Based on the results of the Child Abuse Potential Inventory, Dr. Mussenden concluded that Respondent had no child abuse potential characteristics and was not a danger to children. Moreover, Dr. Mussenden opined that Respondent was emotionally stable, had good skills by which to relate and interact with others, and had no problems or difficulties that would endanger others around her. Dr. Mussenden's evaluation report accurately notes that at the time of the evaluation, Respondent was under the treatment of a psychiatrist and in counseling with a licensed mental health counselor. Dr. Mussenden's opinion is that this course of treatment contributed to Respondent's mental health status at the time of the evaluation. In his report, Dr. Mussenden states, "Due to their success [the psychiatrist and mental health counselor], [Respondent] is relatively well adjusted and without signs of mental difficulties." Dr. Mussenden's credible testimony was that a person can suffer from depression and still be competent to handle one's duties as a teacher. When Respondent was evaluated by Dr. Mussenden, she was taking medication for depression. The purpose of such medication is to help people suffering from depression become well-adjusted. The fact that there was no evidence that Respondent was suffering from depression during the September 2003 evaluation indicates that the medication she was taking was effective in that it masked any depression that may have been present. Dr. Mussenden saw Respondent within 60 days of the hearing and based on that visit, he did not change his opinion that Respondent posed no risk of harm to children.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that a final order be entered that finds Respondent not guilty of the charges alleged in the Administrative Complaint and dismisses the Administrative Complaint. DONE AND ENTERED this 12th day of April, 2006, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of April, 2006.
The Issue The issue presented is whether Respondent's employment by the School Board of Miami-Dade County, Florida, should be terminated.
Findings Of Fact At all times material hereto, Respondent was employed as a teacher at Van E. Blanton Elementary School, pursuant to a professional service contract. Van E. Blanton is a typical elementary school within the Miami-Dade County school system, except that it is classified as a "D" school. As in any school, some students engage in disruptive behavior. Respondent holds a Bachelor of Science degree from Florida International University and is certified to teach English as a second language. Pursuant to her certification, she is eligible to teach elementary school students in grades one through six. She has taught for seventeen years. During the 1998-1999 school year Respondent taught third grade. During the 1999-2000 school year she was assigned to teach first grade. Teachers employed by the Miami-Dade County School Board are evaluated pursuant to the Teacher Assessment and Development System (hereinafter "TADS"). TADS was approved by the Florida Department of Education and is incorporated into the labor contract between the School Board and the United Teachers of Dade (hereinafter "UTD"). The same TADS documents are used for all grade levels, subject areas, and teachers, whether new or veteran. TADS objectively measures 67 minimal behaviors necessary for teaching. At all times material hereto, TADS was used to evaluate Respondent's performance. TADS includes in its assessment criteria: preparation and planning, knowledge of subject matter, classroom management, techniques of instruction, teacher-student relationships, and assessment techniques. All teachers are informed of the criteria and procedures. All new teachers receive a copy of "Mini-TADS," a reduced photocopy of the publication entitled "Teacher Assessment and Development System." At the beginning of each school year, school principals are required to review the assessment criteria at faculty meetings. TADS observations and ratings are performed by school principals and assistant principals. TADS observers are trained and certified. The TADS training takes four days and includes the following components: strategies for pre-observation, classroom observation, decision-making with the Classroom Assessment Instrument, post-observation interview, prescription/probation of professionals, recommendations for improvement (prescriptive activities), assisting teachers in the design of instruction and improvement activities, practical activities such as video assessment, and actual classroom teacher assessment under the supervision of a trainer. The observer records deficiencies observed during the observation period and provides a prescription (a plan) for performance improvement. A post-observation conference is held with the teacher to discuss the prescription. The teacher has the right to provide a written response, either in the space provided in column 3 of the "Prescription for Performance Improvement" or by separate document that becomes part of the teacher's file. The teacher is required to comply with the activities provided in the prescription plan, which are usually obtained from the "Prescription Manual," and to meet the deadlines set forth in the column designated "Timeline" in the prescription performance improvement plan. As a result of the statutory amendments to Section 231.29, Florida Statutes, the School Board and UTD executed a Memorandum of Understanding on December 4, 1997, for the purpose of amending the TADS procedure to comply with the new statutory requirements. Under the amended procedures, a conference for the record initiates a 90 calendar-day performance probation period. Each observation stands on its own, and there must be periodic observations during the performance probation period in which the employee is apprised of his or her progress and is provided assistance through prescription plans. After the performance probation period is concluded, there is a confirmatory observation without a prescription plan. On March 30, 1999, Respondent was formally observed by Principal Edith Hall during math class. She was rated unsatisfactory in Category III, Classroom Management, and Category IV, Techniques of Instruction. Respondent was rated unsatisfactory in classroom management because she did not effectively use verbal or non- verbal techniques to redirect off-task learners. Several students misbehaved and violated classroom rules continuously. Respondent did not use techniques effectively to maintain the attention of off-task learners. Clear expectations of student behavior and a systematic approach to proper classroom discipline were not evident. Classroom rules were not referred to, and students who were disruptive were not dealt with quickly and appropriately. Respondent was rated unsatisfactory in techniques of instruction because Respondent did not provide background information and information as to why the topic of surveys was being taught. Respondent started with the wrong textbook and abruptly changed books without explanation and without setting the stage for the lesson. Lesson components were not appropriately sequenced. Activities were not in her lesson plans. Respondent and her students read material together, and students were told to copy a chart. There was no closure to assist the students in understanding the concept of surveys. Little or no instruction or learning took place. During the post-observation conference for the record held April 14, 1999, Respondent was advised that her performance was unacceptable, that starting on that date she was placed on a 90 calendar-day performance probation period, and that at the end of her probation period she had to demonstrate that she had corrected the identified deficiencies. This conference took place within 10 calendar days excluding spring recess, which started April 2 and ended April 9, 1999. Principal Hall made recommendations with respect to the specific areas of unsatisfactory performance and provided assistance in the prescription plan for Respondent to correct her deficiencies. Respondent provided her written responses in column 3 of the prescription plan, basically explaining her unsuccessful efforts to control students' disruptive behavior. The assistance provided included observing a lesson taught by a fellow teacher and submitting a summary of the verbal and non-verbal discipline techniques used by that teacher to redirect off-task learners. Respondent was also directed to read specific pages from the TADS Prescription Manual, to complete certain activities in that Manual, to develop instructions for proper student behavior, and to submit those activities to the assistant principal for review. Recommended resources, such as administrators and fellow teachers, were also made available to Respondent. Respondent had until May 14, 1999, to complete the prescription activities listed in the April 14 prescription plan. She submitted her completed activities in a timely manner. On May 20, 1999, Respondent was formally observed in her science class by Assistant Principal Christina Miracle as a periodic evaluation to apprise Respondent of her progress. Respondent was found unsatisfactory in Category I, Preparation and Planning, Category III, Classroom Management, and Category IV, Techniques of Instruction. Respondent was rated unsatisfactory in preparation and planning because her lesson plans failed to state the objectives, activities, homework, or method of monitoring student progress and because she did not fill the allocated time with instruction. Twenty minutes were wasted waiting for a video that was never shown, which video was not reflected in Respondent's lesson plans for that day. Respondent was rated unsatisfactory in classroom management because there was too much time when there was no instruction taking place. Instructional activities did not begin promptly and did not continue until the end of the allocated time period. Approximately half of the students were not engaged in learning activities. Respondent did not effectively use verbal and non-verbal techniques to redirect the off-task behavior. Respondent was rated unsatisfactory in techniques of instruction because she did not follow a sequence of instruction and did not refer to any previous information that students should possess to facilitate learning the lesson. In addition, the lesson components were not appropriately sequenced. First, Respondent stated that they would be learning about animals but when the video was not shown, she proceeded to discuss natural resources. No explanation or connection was made between the two topics. Respondent made no provision for lesson closure. The students told Respondent it was time to go home and started leaving the classroom. During the post-observation conference on May 27, 1999, Miracle made recommendations with respect to the specific areas of unsatisfactory performance and provided assistance in the prescription plan for Respondent to correct her deficiencies. The assistance included preparing detailed lesson plans identifying objectives, activities, assessment and homework, submitting her lesson plans to the assistant principal on a weekly basis, and observing a fellow teacher to note verbal and non-verbal techniques. The prescription also required Respondent to submit to the assistant principal a classroom management plan to implement in Respondent's classroom. Respondent was also directed to complete several specific activities from the TADS Prescription Manual and to discuss them with the assistant principal. Recommended resources from the administration and the TADS Prescription Manual were also made available to Respondent. Respondent's prescription plan activities were due on September 10, 1999, but she did not submit them. Respondent was given until September 27 to complete those activities, but she again failed to complete them. On September 15, 1999, Respondent was formally observed in her language arts class by Principal Hall. Respondent was rated unsatisfactory in the categories of Preparation and Planning, Knowledge of Subject Matter, Classroom Management, Techniques of Instruction, and Assessment Techniques. Respondent's performance was unsatisfactory in the area of preparation and planning because the content of the lesson and the activities were not related to the objective listed in the lesson plan. Respondent did not follow the lesson plan as written. Respondent was rated unsatisfactory in knowledge of subject matter because she did not present information in a sequentially-logical manner. The information presented was disjointed and in an illogical sequence. Respondent failed to present information at more than one cognitive level. The students were asked to trace and color without any probing or higher-level questioning. Respondent was rated unsatisfactory in classroom management because there were no clear expectations for behavior. Students ignored the classroom rules, and Respondent did not refer to those rules when students misbehaved. She did not deal appropriately with off-task students. Many students talked out of turn, got out of their seats without permission, and talked with classmates during instruction. Respondent failed to engage those students in learning. Respondent was rated unsatisfactory in her techniques of instruction because the lesson components were inappropriately sequenced. Respondent began with color words, then discussed time, and then gave directions for heading the paper. She interrupted students by constantly referring to the time remaining to complete the assignment. She did not provide for lesson closure and did not recap any of the activities of the day. Respondent was rated unsatisfactory in assessment techniques because there was only one grade in her grade book and no evidence of more than one kind of assessment. There was no evidence of a variety of test formats. There were no samples of student work on file. During the post-observation conference on September 21, Principal Hall made recommendations with respect to the specific areas of unsatisfactory performance and provided assistance in the Prescription Plan for Respondent to correct her deficiencies. The assistance included preparation of detailed lesson plans, with objectives, activities, and student assessment, to be submitted to the assistant principal for review on a weekly basis. Respondent was told to follow her lesson plans for each subject each day, to prepare her classroom activities prior to teaching the lesson, and to review those activities with the assistant principal. Arrangements were made for Respondent to observe fellow teachers. Respondent was to prepare a summary of her observations as to how other teachers encouraged their students to improve their behavior and the strategies those teachers used for verbal interaction. Respondent was to include in that summary the manner in which she could incorporate her observations into her own lessons and discuss her summary with the assistant principal. Respondent was told to use the standard teacher grade book to record student attendance and student assessment and to submit her grade book to the assistant principal on a weekly basis. Respondent refused to sign the Prescription Plan and did not submit any written response. The activities required by the Prescription Plan were due September 24, 1999, but Respondent failed to submit them. She was given until September 27 to do so, but again failed to submit them to the assistant principal as directed by the Prescription Plan. On September 29, 1999, Respondent was formally observed in her math class by Principal Hall and was rated unsatisfactory in Classroom Management and Techniques of Instruction. This observation was made within 14 days of the close of Respondent's probationary period and was made for the sole purpose of determining if Respondent's deficiencies had been corrected. This confirmatory observation does not require a prescription plan. On September 30 Respondent was notified that she had failed to submit her prescriptive activities, had failed to meet the Prescription Plan requirements, and had failed to correct her performance deficiencies. On that date Principal Hall forwarded to the Superintendent of Schools her recommendation that Respondent's employment be terminated. On October 5 the Superintendent notified Respondent that he was recommending to the School Board that her employment contract be terminated because she had failed to correct her performance deficiencies during her 90 calendar-day performance probationary period. The School Board's contract with UTD provides for a joint labor/management committee commonly known as the TADS monitoring committee. That committee serves as a forum to resolve complaints regarding observation and evaluation issues. Respondent did not register any complaint with the TADS monitoring committee and did not file any grievance under the UTD contract as a result of any dispute or objection concerning the TADS criteria or procedures or her assessments under TADS. On September 28, 1999, Respondent did file a grievance with UTD claiming harassment by Principal Hall. That grievance did not articulate any dispute with the TADS criteria or procedures used to evaluate Respondent. Respondent's complaint of harassment was based solely on frequent classroom visits by her principal. At a meeting held on October 8, 1999, Principal Hall explained that it was her duty to make classroom visits because Van E. Blanton was rated as a "D" school and that she regularly visited every classroom. Respondent's grievance was filed only after the close of her performance probationary period, and the meeting occurred after the Superintendent had recommended to the School Board that Respondent's employment be terminated. The assistance provided to Respondent through her prescriptions was appropriate to remedy her cited deficiencies. Respondent was also provided assistance in the form of workshops, monthly grade-level teacher meetings, in-service workshops and classroom demonstrations. Respondent was observed in two of the workshops eating potato chips and not taking any notes. Despite the assistance given to Respondent, she did not improve sufficiently at any time subsequent to April 14, 1999, to obtain a satisfactory rating under TADS. Respondent could have taken the Summer 1999 In-service Program for elementary teachers, or the Dimensions of Learning Program, or the Substitute Teacher Training: Classroom Management and Effective Teaching Techniques, or any of the workshops offered by the Teacher Education Center but did not do so. Under the UTD contract, teachers cannot be required to attend in-service programs held during the summer recess. Participation by teachers in those programs is voluntary. For whatever reasons, Respondent chose not to participate in order to correct her deficiencies during her performance probationary period. Respondent claims that Principal Hall inappropriately performed one of her observations when testing was scheduled. The alleged testing was a diagnostic survey that is done on an individual basis. Teachers are still required to provide learning activities for the other students while such testing is being performed. Further, Respondent failed to perform that required testing, and other teachers had to test Respondent's students. Respondent also claims that the September 29, 1999, observation was performed during a time when she was not scheduled to teach. However, Respondent's class schedule belies that claim. All TADS requirements were completed, and all TADS procedures were properly executed regarding the formal observations of Respondent and the evaluations of her teaching performance. Further, Respondent was not harassed by Principal Hall regarding the formal observations of Respondent pursuant to TADS requirements.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered terminating Respondent's employment and denying Respondent's claim for back pay. DONE AND ENTERED this 5th day of May, 2000, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of May, 2000. COPIES FURNISHED: Dr. Roger Cuevas, Superintendent School Board of Miami-Dade County 1450 Northeast Second Avenue, Suite 403 Miami, Florida 33132-1308 Tom Gallagher, Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Lisa N. Pearson, Esquire United Teachers of Dade 2929 Southwest Third Street Miami, Florida 33129 Ana I. Segura, Esquire School Board of Miami-Dade County 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132
The Issue The issue is whether the Education Practices Commission should suspend, revoke, or otherwise discipline Respondent’s certificate to teach school in the State of Florida.
Findings Of Fact Respondent is certified to teach in the area of Mentally Handicapped. Her Florida teaching certificate, number 637203, is valid through June 30, 1999. Respondent received a satisfactory evaluation of her teaching performance in Duval County for four years prior to the 1992-1993 school year. While teaching at C. G. Woodson Elementary School in Duval County, Respondent helped establish a mobility room for students in the Exceptional Student Education (ESE) program. She also played an important role in the creation of a parent center. She initiated the school’s participation in the foster grandparent program. During the 1992-1993 school year, the Duval County School District employed Respondent as a teacher in a self- contained Exceptional Student Education (ESE) classroom at C. G. Woodson Elementary School. Her students included pre- kindergarten, kindergarten, and first grade students who were designated as Trainable Mentally Handicapped (TMH). Respondent’s principal at C. G. Woodson Elementary School was Ms. Gloridan Norris. In 1992, Ms. Norris observed Respondent in classroom situations that caused her great concern. As a result, Ms. Norris and district ESE personnel began providing Respondent with on-going technical assistance. Respondent denied that she had any problems and did not cooperate with the efforts to alleviate Ms. Norris’s concerns. On or about March 11, 1993, Ms. Norris signed an annual evaluation of Respondent’s performance for the 1992-1993 school year. Competent persuasive evidence supports this evaluation which rated Respondent unsatisfactory in five of eight categories: (a) demonstrates ability to plan and deliver instruction; (b) demonstrates knowledge of subject matter; (c) demonstrates ability to utilize appropriate classroom management techniques, including the ability to maintain appropriate discipline; (d) shows sensitivity to student needs by maintaining positive school environment; and (e) demonstrates a commitment to professional growth. Respondent’s overall evaluation was unsatisfactory. By letter dated May 10, 1993, the Duval County Superintendent of Schools advised Respondent that she would be discharged if she did not reach a satisfactory level of performance. It also informed her that she had the option of transferring to a new teaching position within the county. Respondent elected to transfer to another school. For the 1993-1994 school year, the Duval County School District assigned Respondent to teach at Mary McCloud Bethune Elementary School. Mr. William West was her principal. Respondent’s class for this school term consisted of fourth and fifth grade Educable Mentally Handicapped (EMH) students. Her class had twelve students, making it the smallest ESE class in the school. On or about August 2, 1993, Mr. West requested technical assistance for Respondent from the school district’s office of ESE Instructional Program Support. He specifically requested recommendations for Respondent in the area of classroom and behavior management. Pursuant to that request, the school district’s ESE staff visited Respondent’s classroom five times between September 8, 1993 and October 4, 1993. Dory Reese, Specialist in Intellectual Disabilities, prepared a report containing recommendations for Respondent’s immediate implementation. These recommendations included, but were not limited to these: (a) methods to gain control of the classroom so that instruction can begin; (b) how to follow through on any directions; (c) how to discipline; (d) how to be positive in giving directions; (e) how to stop a specific behavior; and (f) how to regain control which has been lost. In the fall of 1993, Mr. West requested assistance for Respondent from the school district’s office of Professional Development. As a result of that request, Sheryl Hahn visited in Respondent’s classroom. Ms. Hahn is certified to teach mentally retarded students. She prepared a written success plan which listed specific objectives and strategies for Respondent to improve her classroom teaching performance. Ms. Hahn’s plan included objectives and strategies in the following areas: (a) ability to plan and deliver instruction; (b) demonstrates knowledge of subject matter; (c) ability to use appropriate classroom management techniques; (d) maintaining accurate records; and (e) showing sensitivity to student needs by maintaining a positive school environment. Respondent and Ms. Hahn discussed the plan, including proposed completion dates for certain objectives, in a meeting on October 12, 1993. On October 26, 1993, Mr. West prepared Respondent’s mid-year evaluation for the 1993-1994 school year. He found that her performance was unsatisfactory in five of eight categories: demonstrates ability to plan and deliver instruction; demonstrates ability to utilize appropriate classroom management techniques, including the ability to maintain appropriate discipline; (C) shows sensitivity to student needs by maintaining positive school environment; (d) demonstrates abilities to evaluate instructional needs of students; and (e) shows evidence of professional characteristics. Competent persuasive evidence supports these ratings. On October 27, 1993, Respondent was absent from work. The assistant principal, Ms. Rosa Thomas, had to stay with Respondent’s class until a substitute arrived. Respondent had not prepared lesson plans for her class. Another teacher had to share her class work with Respondent’s students. On October 28, 1993, two of Respondent’s pupils left the classroom without permission. Respondent did not know where they were until they were located in the assistant principal’s office. On November 2, 1993, a student left Respondent’s class and went to the school office without permission. Mr. West sent Respondent a memorandum, reminding her that it was dangerous for the children to leave the classroom without adult supervision. He was concerned for the safety of the children. On November 5, 1993, a parent wrote a memorandum complaining that Respondent’s class was out of control. The parent requested that her child be transferred to another class. On November 8, 1993, Mr. West requested a psychiatric evaluation for Respondent. Mr. West based his request on concerns for the safety of Respondent’s students, concerns for Respondent’s health, and concerns about the school’s program. Respondent was unable to maintain control of her classroom. She appeared to be depressed and lethargic. During the week of November 12, 1993, one of Respondent’s pupils refused to get on the bus. The child walked home across a busy highway without supervision. Meanwhile, parents continued to call or visit Mr. West on a daily basis requesting that their child be removed from Respondent’s classroom. On or about November 19, 1993, Mr. West observed Respondent’s classroom performance. He saw students leaving the room without permission, standing on top of desks, taunting the teacher, and fighting. At the end of the day when Mr. West mentioned her pending psychiatric evaluation, Respondent became loud and emotional and stormed from the room. Mr. West wrote a letter to the Assistant Superintendent of Schools, expressing fear for the safety of the children. He requested that Respondent be removed from the classroom immediately. Late in November or early in December of 1993, Mr. West removed Respondent from her regular teaching position. He assigned her a new duty, one-on-one tutoring of ESE students. On or about December 15, 1993, Mr. West wrote another letter to the Assistant Superintendent of Schools. This letter expressed Mr. West’s fear regarding the safety of adults working with Respondent. During a meeting, Respondent became angry with support staff. She glared at the other adults, mumbled under her breath, and scribbled so hard on a paper that she tore it. Mr. West requested that Respondent be removed from the school setting. In January of 1994, Respondent returned to her regular classroom for the first time in several weeks. Mr. West observed her while she was teaching a lesson. He saw a student standing on top of a table and other students wrestling. The students appeared to ignore Respondent’s attempts to restore order. At times, Respondent appeared to ignore the chaos around her. After this observation, Mr. West told Respondent to return to her assigned duty of tutoring ESE students. Mr. West again requested that the school district remove Respondent from the school and place her in a non-teaching position. A memorandum dated January 27, 1994, advised Respondent that she would receive an unsatisfactory evaluation for the 1993-1994 school year. On March 10, 1994, Mr. West signed Respondent’s annual evaluation for the 1993-1994 school year. She received unsatisfactory ratings in six of eight categories: demonstrates ability to plan and deliver instruction; demonstrates knowledge of subject matter; (c)demonstrates ability to utilize appropriate classroom management techniques, including the ability to maintain appropriate discipline; (d) shows sensitivity to student needs by maintaining positive school environment; (e) demonstrates abilities to evaluate instructional needs of students; and (f) shows evidence of professional characteristics. Competent persuasive evidence supports these ratings. On or about April 25, 1994, the Duval County School Board notified Respondent that it intended to terminate her employment. On or about July 11, 1994, Respondent and the Duval County School Board entered into an agreement in which Respondent agreed to resign her teaching position. Clear and convincing evidence indicates that Respondent is not competent to teach or to perform the duties of an employee in a public school system. She is not competent to teach in or operate a private school. Most importantly, Respondent is incapable of providing a safe environment for students in her classroom.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Education Practices Commission revoke Petitioner’s teaching certificate for one year from the date of the Final Order. DONE AND ENTERED this 2nd day of July, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of July, 1997. COPIES FURNISHED: J. David Holder, Esquire 14 South Ninth Street DeFuniak Springs, Florida 32433 Patricia Simmons 968 Southeast Browning Avenue Port St. Lucie, Florida 34983 Karen Barr Wilde, Executive Director Education Practices Commission 224-B Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Kathleen M. Richards, Administrator Professional Practices Services 325 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Michael H. Olenick, Esquire Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
The Issue The central issue in this case is whether the Respondent should be suspended or dismissed from her employment with the School Board of Dade County, Florida (Board).
Findings Of Fact Based upon the testimony of the witnesses the following findings of fact are made: Respondent was employed as a first grade elementary school teacher at Fulford Elementary School during the 1988-89 school year. In September, 1988, the principal at Fulford Elementary, Mrs. Pope, asked the primary education coordinator for region 2, Mrs. Neely, to perform an observation and assessment of all primary teachers at Fulford. Accordingly, Mrs. Neely observed all classrooms for grades kindergarten through three and made recommendations to the teachers and Mrs. Pope. Mrs. Neely visited respondent's classroom on several occasions and observed the Respondent's treatment of students and her teaching methods. Respondent did not follow the lesson plan for the daily lesson, did not have a schedule to specify times for subjects to be taught, and did not have a based reading program as required by the board. When Mrs Neely attempted to counsel Respondent in order to assist her to correct these deficiencies, Respondent became hostile and argumentative. During one visit Mrs. Neely observed the Respondent chasing students around the classroom. At first Mrs. Neely assumed the conduct to be a game of some type. When the conduct continued for several minutes without interruption or comment from Respondent, Mrs. Neely realized that the class was out of control and that the Respondent was unable to restore order. Consequently, Mrs. Neely took charge and got the children into their seats. When she instructed the class to get quiet, Respondent also took her chair and refused to speak. Ultimately, Mrs. Neely taught the class for the remainder of the lesson. Respondent refused to cooperate with Mrs. Neely and did not correct the deficiencies in teaching and class management which Mrs. Neely observed. During a portion of October and November, 1988, Vincent Golden was assigned to Respondent's classroom to work as a teacher's aide. During the three weeks he was with Respondent's class, Mr. Golden observed Respondent on a daily basis. Twice during this period Respondent grabbed a student named Devon by the throat to reprimand inappropriate conduct. On another occasion Respondent grabbed a female student by the hair in order to chastise the student. In a fourth incident, Mr. Golden heard the Respondent instruct students in the class to chase down another student. This chase resulted after Respondent had thrown off her own shoes, failed at catching the student within the room, and had become frustrated the student bolted from the classroom. Mrs. Pope apprehended the errant student and Respondent's posse in the halls. During the fall of 1988, Mary Williams was employed as a systems aide at Fulford Elementary. On one occasion she observed two students outside of Respondent's classroom who were unable to open the door because Respondent and a student were holding it closed from the inside. One of the students was crying hysterically and was taken to the library to calm down. On a second occasion Respondent refused to allow a new student who was handicapped into her room. Mrs. Williams went to Respondent's classroom almost everyday to ask Respondent for her reading groups. It was Ms. Williams' responsibility to enter the reading group information into the school computer. Respondent refused to provide the reading group rosters. During the fall of 1988, Charles Mixon supervised a maintenance crew at Fulford Elementary. One day while Mr. Mixon was observing a crew mowing the lawn adjacent to Respondent's room, he saw Respondent shove two students out of the classroom. Mixon then overheard Respondent tell the students to fight outside if they wished to continue. The students were then left in the hall unsupervised. On another occasion Mr. Mixon overheard the Respondent tell a teacher to kiss her backside. Mr. Mixon watched Respondent make the comment as she pulled her dress halfway up. Lossie Jordan was an exceptional education teacher at Fulford Elementary during the 1988-89 school year. On one morning Ms. Jordan was in the office copying some materials when Respondent approached her and asked her if she had a squirrel for her. When Mrs. Jordan replied in the negative and asked Respondent why she would ask that, Respondent told her that a woman had come to her house the day before to tell her to ask Mrs. Jordan that question. No further explanation was offered by Respondent. A second incident occurred when Respondent entered Mrs. Jordan's classroom to drop students of for instruction. Mrs. Jordan was in the process of showing another teacher a new blouse she had bought. Upon entering, Respondent told the students that Mrs. Jordan was a thief and that she had stolen the new blouse. A third incident arose when Respondent, Mrs. Jordan and Mrs. Forbes, another teacher, were in the workroom waiting for the copy machine. Respondent was the third to center the room and when Mrs. Forbes told her that they were ahead of her to use the machine, Respondent shoved Mrs. Forbes against Mrs. Jordan who fell against the cabinets. Respondent then left the workroom. On still another occasion, Respondent told Mrs. Jordan to kiss her backside. On October 27, 1988, Mrs. Pope called Respondent into her office for a conference for the record. Mrs. Pope was concerned about the number of incidents which had been reported regarding Respondent's conduct. Mrs. Pope had also observed Respondent's class. During one observation Mrs. Pope watched a group of students who were sitting at a back table in Respondent's class. One student pulled another student's sweater and tied it behind his back so that the student could not use his hands. Mrs. Pope mentioned the problem to Respondent who advised her that since the student had gotten himself into the situation he would have to get himself out of it. On other occasions Mrs. Pope observed Respondent chasing students around the classroom. Respondent failed to properly supervise students in her classroom. As a result, Mrs. Pope was required to return students to Respondent's room after they wandered out into the school halls. Another unsupervised student got her arm caught in a chair and was brought to Mrs. Pope who had to contact Fire Rescue to release the child's arm. On November 2, 1988, Mrs. Pope directed Respondent to come to the office for a conference with a parent regarding allegations the parent's child had made. Respondent refused to meet with the parent. After directives from Mrs. Pope not to lock her classroom door, Respondent locked her door. After directing Respondent not to leave her class unsupervised, Mrs. Pope found Respondent's class unsupervised at least four times. Respondent had physical contact with students to administer discipline after Mrs. Pope directed her to refrain from such conduct. Respondent refused to accept a handicapped student after Mrs. Pope directed her to admit the child into her class. Following a number of the incidents described above, parents asked Mrs. Pope to remove their children from Respondent's class. Respondent's effectiveness was impaired by her behavior and her failure to properly supervise and instruct her class. Mrs. Pope directed Respondent to an employee assistance program. Ultimately, following a conference with Dr. Monroe, Dr. Poiret, a psychiatrist, performed a psychological assessment of Respondent. Following interviews with Respondent on November 22, 1988 and December 1, 1988, Dr. Poiret determined Respondent was not medically fit to carry out her assigned responsibilities. Consequently, Respondent was relieved of her teaching duties and spent the remainder of the school year on leave. During the leave Respondent was to undergo individual psychotherapy on at least a weekly basis and to have a complete physical examination. Later, Dr. Monroe requested that Respondent submit documentation regarding her psychotherapy Respondent did not do so. In August, 1989, Dr. Poiret met with Respondent again to evaluate her ability to return to the classroom. As in the prior instances, Respondent continued to be hostile, noticeably irritable and angry. Since she had made no significant improvement, Dr. Poiret determined Respondent was not medically fit to discharge her teaching duties due to a lack of emotional stability. Respondent repeatedly demonstrated a failure to effectively and efficiently manage the behavior of students assigned to her classroom. She failed to provide a curriculum of education to the students in her class, failed to communicate appropriately with her peer teachers and administrators who attempted to assist her, and failed to carry out her professional1 duties. As a result, Respondent's effectiveness in the school system has been seriously impaired. Respondent failed to take corrective measures to amend her deficiencies, failed to obey reasonable instructions given to her by the principal, and failed to present documentary evidence of her successful completion of therapy required to rehabilitate her for classroom duties.
Recommendation Based on the foregoing, it is RECOMMENDED: That the School Board of Dade County, Florida enter a final order dismissing the Respondent from her employment with the public school district. DONE and ENTERED this 21st day of May, 1990, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of May, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-7035 PETITIONER: Paragraph 1 is accepted. Paragraphs 2 and 3 rejected as irrelevant. Paragraphs 4 and 6 accepted as addressed in paragraph 8, otherwise rejected as irrelevant or recitation of testimony. Paragraph 5 is rejected as irrelevant. Paragraphs 7 and 8 are rejected as irrelevant. Paragraph 9 is accepted. Paragraph 10 is accepted. Paragraph 11 is rejected as hearsay. Paragraph 12 is accepted. As addressed in paragraph 5, paragraphs 13 through 15 are accepted; otherwise rejected as irrelevant or contrary to the weight of the evidence. Except as addressed in paragraph 9, paragraph 16 is rejected as hearsay. Except as addressed in paragraphs 2 through 4, paragraphs 17,18, and 19 are rejected as irrelevant. Paragraph 20 is accepted. The first sentence of paragraph 21 is accepted. The balance of the paragraph is rejected as irrelevant or hearsay. The first six sentences of Paragraph 23 are accepted. The balance is rejected as repetitive, irrelevant or argumentative. Paragraph 24 is rejected as repetitive or irrelevant. Paragraph 25 is rejected as recitation of testimony. Paragraph 26 is accepted to the extent addressed in paragraph 6; otherwise rejected as irrelevant, recitation of testimony or argumentative. Paragraph 27 is accepted. Paragraph 28 is rejected as irrelevant. Paragraphs 29 through 31 are accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: Paragraph 1 is rejected as contrary to the weight of credible evidence. Todate, Respondent has not submitted written or other evidences from a treating physician which would establish she is medically able to return to the classroom. Paragraph 2 is rejected as contrary to the weight of the credible evidence. COPIES FURNISHED: Irma Annette Butler Lowe 17350 N.W. 17th Avenue Miami, Florida 33056 Frank Harder Twin Oaks Building, Suite 100 2780 Galloway Road Miami, Florida 33165 Mrs. Madelyn P. Schere Assistant School Board Attorney School Board of Dade County Board Administration Building, Suite 301 1450 Northeast 2nd Avenue Miami, Florida 33132
Findings Of Fact Respondent is an annual contract teacher with the Dade County Public Schools and holds a Florida state teacher's certificate. Although she had worked as a teacher assistant in the past, her first year of employment as a full time teacher was the 1980-81 school year. Since she is an annual contract teacher with no right to a continuing contract, the primary issue is whether she has the right to obtain back pay for the period of the school year during which she was suspended. Respondent was a teacher at Melrose Elementary School for the 1981-82 school year. At the beginning of the school year, she was assigned to teach a Compensatory Education Class. These are small classes and, in Ms. Harper's case, never exceeded 11 students. She was, however, required to keep and retain student records to enable subsequent teachers to determine at what level the student was functioning. After Respondent was transferred from the Compensatory Education classroom, the assistant principal requested that she turn in the records for the class. Respondent stated that she had destroyed them. Respondent's next assignment at Melrose Elementary School was as the teacher of a fifth-sixth grade combination regular education class. The assistant principal officially observed Respondent in this classroom three times and unofficially observed her on additional occasions. She found that Respondent lacked effective instructional planning based on Respondent's failure to complete lesson plans. The collective bargaining agreement between the School Board and the Respondent's union stated that lesson plans were an essential part of the teaching process and a proper subject for evaluation. On one occasion, the school was preparing for an audit. Auditors (administrators from other schools) check teacher's plan books, grade books and other teaching materials. The assistant principal contacted Respondent several times in advance of the audit in an attempt to prepare her for it. However, Respondent failed to develop the required lesson plans, so the assistant principal wrote out a week's plans for her. She asked Respondent to take the plans home over the weekend and copy them in her own handwriting. The following Monday at the beginning of the audit, Respondent had only filled out plans for Monday, Tuesday and Friday. There were no lesson-plans to be delivered to the auditors regarding Wednesday or Thursday. Testimony of Respondent's supervisor established that she was unable to control the students in her classroom, primarily because she did not assign them anything to do. A Furthermore, she sent her students out to play without supervision and left her classroom unattended on several occasions, even though she had previously been instructed by her supervisor not to do so. Respondent received an unacceptable performance rating in the area of "techniques of instruction". This rating was based on the fact that Respondent did not pre-test her students and therefore had no knowledge of what the student did or did not know, what he needed to be taught or where to place him in the classroom. As a result, she attempted to teach students division when those students had not yet mastered prerequisite skills. She did not divide her class into ability groups so that she could teach groups of students at their levels of comprehension, and she did not maintain student profiles which would have shown her a particular student's abilities and deficiencies. Respondent either did not assign homework to her students or they did not return it because she had no records to indicate such assignment or files containing student homework. Her records of student grades were incomplete and only sporadically maintained. In the spring of 1982, two students from Respondent's class ran into the principal's office crying. The female student had welts on her chest and face; and the male student had similar injuries to his arms. These injuries were the result of an attack by Respondent. She had not been authorized to administer corporal punishment by her supervisor. Although there was another incident where Respondent chased a student with a ruler, this was the only situation in her teaching career where her loss of control had serious consequences. She appears to regret this incident. Ms. Harper was reassigned to South Hialeah Elementary School for the school year 1982-83. When she reported to South Hialeah Elementary School on September 20, 1982, she was given a lesson plan format, a teacher handbook and other pertinent teaching materials. Respondent received a two day orientation during which she was permitted to read the handbook, observe other teachers and talk with the grade level chairman. She was given instruction in writing lesson plans in the format used throughout the county and required by the UTD-School Board contract. She was then assigned a regular fourth grade classroom. On her second day of teaching, the assistant principal noted an unacceptable noise level emanating from Respondent's classroom during the announcement period. When she walked into the room, she found Respondent preparing her lesson plans with the students out of control. The assistant principal advised Respondent that this was not the proper time to prepare lesson plans. The next day the situation was the same, and fights broke out between students. The assistant principal was concerned for the safety of these students because of the fights and because Ms. Harper's classroom was on the second floor and students were leaning out of the windows. On October 4, 1982, the assistant principal conducted a formal evaluation of Respondent's classroom teaching, and initially found Respondent preparing lesson plans and not instructing or supervising her students. During the reading lesson, Respondent did not give individual directions to the students, but merely told them all to open their books to a particular page. Since the students were not all working in the same book because they were functioning at different levels of achievement, this created confusion. Finally, the students who had the same book as Respondent were instructed to read, while other students did nothing. After a brief period of instruction, the class was told to go to the bathroom even though this was the middle of the reading lesson and not an appropriate time for such a break. The assistant principal noted that Respondent did not have a classroom schedule or rules. The classroom was in constant confusion and Respondent repeatedly screamed at the children in unsuccessful attempts to maintain order. The assistant principal determined that these problems had to be addressed immediately. Accordingly, in addition to a regular long term prescription, she gave Respondent a list of short term objectives to accomplish within the next two days. These objectives consisted of the development of lesson plans and a schedule, arranging a more effective floor plan in the classroom, making provisions for participation by all of the students and developing a set of classroom rules. The assistant principal advised Respondent that if she had any difficulty accomplishing these objectives, she should contact her immediately. The short term objectives were never accomplished. Respondent did not develop classroom rules. Although the assistant principal and other teachers attempted to teach her to write lesson plans, this was relatively unsuccessful. The principal observed the classroom on October 6, and found that no improvements had been made. She also noted that Respondent had not complied with the outline for lesson plans required by the contract between the UTD and the School Board. Neither had she complied with the school's requirements for pupil progression forms. The principal advised Respondent to attempt once again to work on the short term prescription assigned on October 4, 1982. Subsequent observations and assistance did not result in any noticeable improvement. Respondent was unable to understand the need for organizing students in groups according to their abilities. Her students continued to wander aimlessly about the classroom. She was unable to document required student information even after repeated demonstrations. She did not test students and she failed to record their grades, except sporadically. Other teachers and parents complained about classroom conduct. Some parents requested that their children be moved out of Ms. Harper's class. Others complained to school officials about telephone calls from Ms. Harper at 2:00 a.m. or 6:00 a.m. Even the school custodian complained because Respondent's students repeatedly threw papers out of the windows. The principal arranged for Respondent to meet with the grade-level chairman and the assistant principal to learn to develop lesson plans. She obtained information about classes at the Teacher Education Center of Florida International University and directed Ms. Harper to attend the classes. She subsequently determined that Respondent had not attended. Respondent told the principal that she could not attend because of car trouble. At the hearing, Respondent stated that not only did she have car trouble, but since she was a single parent, she lacked the time and money to attend the classes. She conceded, however, that the classes were free. In a further effort to assist her, Respondent was excused from her regular classroom duties to observe successful teachers. On one occasion she was found taking a coffee break instead. Again, there was no improvement apparent from this remedial measure. At the principal's request, the School Board's area director observed Respondent on November 11, 1982. Her testimony established that Respondent worked with only one group of three students in the classroom and that the reading lesson being taught to those children was below their appropriate level. She also observed that there were no records indicating the progress of Respondent's students and that the students were talking continually. Due to her numerous difficulties in teaching and the lack of progress in correcting the deficiencies, the principal, assistant principal and area director concluded that Respondent lacked the requisite competence to continue in her contract position. A recommendation of dismissal to the School Board followed and on January 5, 1983, Respondent was suspended. After her suspension, Respondent secured employment as a teacher of English for speakers of other languages (ESOL) at the Tri-City Community Association. Testimony of its director established that Respondent is an effective teacher of ESOL and that she trains other teachers to perform this function.
Recommendation Based on the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order dismissing Respondent from her position as a contract teacher effective January 5, 1983. DONE and ENTERED this 20th day of December, 1983, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 1983. COPIES FURNISHED: Phyllis O. Douglas, Esquire 1410 N.E. Second Avenue Miami, Florida 33132 Ellen Leesfield, Esquire 2929 S.W. Third Avenue Miami, Florida 33129 Dr. Leonard Britton, Superintendent Dade County Public Schools Lindsey Hopkins Building 1410 Northeast Second Avenue Miami, Florida 33132
The Issue The issues for determination at the final hearing were: 1) whether the Respondent should be dismissed from employment due to incompetency; and 2) whether the conflict in the statute cited in the Notice of Charges dated November 18, 1982, and the Notice of Hearing dated June 18, 1983, constitute inadequate notice to the Respondent Muina of the charges against him. At the final hearing, Marsha Gams, a learning disability teacher at Carol City Junior High School, Rosetta Vickers, Director of Exceptional Student Education, Dade County School Board, Carol Cortes, principal at Carol City Junior High School, Karen Layland, department chairperson of the Exceptional Education Department at Carol City Junior High School and Desmond Patrick Gray, Jr., Executive Director of Personnel, Dade County School Board, testified for the Petitioner School Board. Petitioner's Exhibits 1-13 were offered and admitted into evidence. Yvonne Perez, Bargaining Agent Representative, United Teachers of Dade, Alexander Muina and Desmond Patrick Gray, Jr., testified for the Respondent. Respondent's Exhibits 1-5 were offered and admitted into evidence. Subsequent to the hearing, the Respondent requested via telephone conference call, that Respondent's Exhibit 6, the published contract between the Dade County Public Schools and the United Teachers of Dade, be admitted into evidence as a late-filed exhibit. The contract was admitted over Petitioner's objection. Proposed Recommended Orders containing findings of fact have been submitted by the parties and considered in the preparation of this Recommended Order. When the parties' findings of fact were consistent with the weight of the credible evidence introduced at final hearing, they were adopted and are reflected in this Recommended Order. To the extent that the findings were not consistent with the weight of the credible evidence, they have been either rejected, or when possible, modified to conform to the evidence. Additionally, proposed findings which were subordinate, cumulative, immaterial or unnecessary have not been adopted. On July 11, 1983, the Petitioner filed objections to the Respondent's Proposed Findings of Fact, Conclusions of Law and Recommended Penalty. Certain of the Petitioner's objections were subsequently stipulated to by the Respondent and are not in issue in this proceeding.
Findings Of Fact The Respondent Alexander Muina has been employed by the Dade County School System for approximately nine years. He initially worked with regular students, then worked as an assistant teacher with profoundly mentally handicapped students. During the 1979-80 school year, the Respondent became a permanent substitute in a class for the trainable mentally handicapped. He held this position for approximately two months and during that period received a satisfactory annual evaluation. During the 1980-81 school year the Respondent was assigned to the "ESOL" Program which is an acronym for English for Speakers of Other Languages. During this period, the Respondent taught as an itinerant teacher at three different schools each week. One of the schools the Respondent was assigned was Carol City Junior High School, where he taught on Thursdays and Fridays, as part of the Entrant Program. This was a program which was established for the approximately 13,000 children who had entered the Dade County School System during the Mariel boat lift. Mrs. Carol Cortes, principal at Carol City Junior High School, compiled the Respondent's annual evaluation for 1980-81 after consulting with the two other principals to whose schools Respondent was also assigned. At that time, Respondent received an acceptable annual evaluation from Cortes; however, Cortes had not continually observed the Respondent or had continuous direct contact with him since he was only at the school two days a week. At the close of the 1980-81 school year, the Respondent asked Cortes if there was an opening in exceptional education in which he could be placed. Toward the end of the summer a position became available in varying exceptionalities, an area in which the Respondent is certified by the State of Florida, and he accepted this position. A varying exceptionality class includes students who have three types of learning disabilities or exceptional problems, including the educable mentally handicapped, the learning disabled, and the emotionally handicapped. Although the Respondent is certified by the State of Florida to teach varying exceptionalities, during his first year instructing the class the Respondent experienced significant problems which are reflected in his evaluations of November, January and March of the 1981-82 school year. The first observation of Respondent as a varying exceptionalities teacher was done on November 5, 1981, by Carol Cortes, principal. The Respondent's overall summary rating was unacceptable in the areas of preparation and planning and classroom management. Individual Education Plans (IEPs) for each of the students were not being followed. The Respondent was not using the IEPs to develop activities for the students which would meet the goals of providing "diagnostic prescriptive teaching." Using the IEPs and the diagnostic prescriptive teaching techniques is crucial to the success of exceptional educational students. The students were not being taught according to their individual abilities, but rather were doing similar classroom work. Additionally, classroom management was lacking in that the Respondent did not formulate adequate behavior modification plans for the students who were observed talking and milling about the classroom. Following her first observation, Cortes offered assistance to Respondent, including changing his physical classroom layout and placing him with the department chairperson. This was done so that the chairperson could assist in developing the activities and plans necessary for the students and could also provide support in developing behavior modification plans. Cortes also asked the school psychologist to work with the Respondent in establishing such plans. Dr. Gorman, the assistant principal, had frequent informal observations of the Respondent in an attempt to help him with his classroom difficulties. The next formal observation of Respondent was performed by Cortes on January 20, 1983, and the overall summary rating was again unacceptable in the areas of preparation and planning, classroom management and techniques of instruction. Preparation and planning was unacceptable because the Respondent was still not following the student's IEPs. He continued to assign the same general activities to all students regardless of individual differences. His class was confused regarding their goals. Because the Respondent was not teaching toward the objectives set forth in the IEPs, the children were not achieving a minimum education experience. The Respondent was marked unacceptable in classroom management because he did not have adequate control over the students. Students were walking around the class and the class was generally noisy The work that the Respondent did with individual students was in the nature of giving directions rather than actually teaching. In order to teach it is necessary to provide students with new concepts and provide teacher input rather than simply monitor students. The Respondent was marked unacceptable in techniques of instruction because his lesson planning was deficient. He spent the majority of time in the classroom attempting to discipline students. His grade book was kept in an inappropriate manner and the students were frustrated. As a result of these problems, Cortes requested that the Respondent visit a program at Madison Junior High School which had an acceptable behavior modification program in place. The Respondent visited the program on January 26, 1982; however, no substantial improvement after the Respondent's visit was noted. The Respondent also took a reading course in late January, 1982. No significant improvement was noted following completion of that course. In January of 1982, a social studies position at Carol City Junior High School became available. Cortes offered that position to the Respondent and he could have transferred into the social studies department if he had so desired. The Respondent, however, elected to remain in the field of exceptional student instruction. At that time, Cortes felt that the Respondent was attempting to deal with his deficiencies and he should be given the opportunity to correct the problems with his class. Mrs. Vickers, Director of Exceptional Student Education for Dade County Schools, made a routine visit to Carol City Junior High School on January 27, 1982. She had heard from one of her education specialists that there were difficulties in classroom management in the Respondent's classroom. She observed that many of the students were not on task in that they walked around the classroom, talked out loud, and called the Respondent "pops". A few of the students tried to work, but the noise level in the class was so high it was disruptive. Vickers chose not to do a formal observation at that time, because she felt that there were many areas that she could not have marked acceptable. Instead, Vickers chose to do a planning session with Respondent on that same date. At the planning session, Vickers discussed with Respondent such topics as getting the students on task, bringing supplies and materials, completing assignments and doing homework. She discussed IEPs with the Respondent and the minimal skills tests that the children are administered in grades 5, 8 and 11. She explained to the Respondent how to use a grade book and examined the student's work folders. Although the folders contained significant amounts of work, the work did not correlate with the objectives on the children's IEPs. Vickers was also concerned that the Respondent was monitoring the class rather than directly instructing the students on specific skills. He did not pull individual students or groups aside for direct instruction. Vickers returned to the Respondent's classroom on February 25, 1982, in order to conduct a formal observation. At that time, Vickers gave the Respondent an unacceptable overall summary rating. She found him deficient in the categories of classroom management, techniques of instruction, assessment techniques, student-teacher relationships, and acceptable in the category of preparation and planning. She rated the Respondent unacceptable in classroom management because a serious problem existed with the management of his students who were not on task. The students were not working in an orderly fashion and the class was so loud that it distracted the class on the other side of the room. When Vickers tried to speak with the teacher in the adjoining room, the noise level in the Respondent's class prevented a successful conversation between them. Due to these problems, the Respondent's students were not receiving a minimum education experience. Children with learning disabilities are easily distracted by visual or auditory interference; this problem was occurring in Respondent's class. Vickers rated the Respondent unacceptable in techniques of instruction since he was not using the diagnostic prescriptive teaching method that is required in the Dade County School System. Respondent was not utilizing small groups to give specific help with skills, but was instead, monitoring. Vickers also rated the Respondent unacceptable in assessment techniques. Exceptional education teachers are required to do a profile on each student showing the skills that the student has met and the skills that the student needs to improve. The Respondent did not meet this requirement. Finally, Vickers found the Respondent unacceptable in student-teacher relationships since she observed that the students showed an unacceptable level of respect for the Respondent. Vickers suggested that the Respondent visit three other exceptional education teachers along with regular teachers in school. She also scheduled an assertive discipline workshop for exceptional education teachers and asked that Respondent attend. The Respondent however, did not attend the workshop. On March 25, 1982, Cortes completed Respondent's annual evaluation for 1981-82 and recommended nonreappointment. This annual evaluation took into consideration all of the observations done by administrators in the building. She found the Respondent unacceptable in the categories of preparation and planning, classroom management, and techniques of instruction. Cortes next observed the Respondent on May 17, 1982, and again gave him an overall summary rating of unacceptable. She found him unacceptable in the categories of preparation and planning and classroom management. Preparation and planning was unacceptable because the Respondent was not following the IEPs for the students. Cortes observed that the Respondent misspelled a word on the black board and the students copied his misspelling. Classroom management remained unacceptable because most of the class was not working. The Respondent continued to have difficulties controlling his students who continued to address him inappropriately by calling him "pops". As the Respondent moved from student to student, the remainder of the class was either talking or milling about the room. Respondent did not have understandable classroom rules and resultant consequences for breaking such rules. Rather than institute positive rewards for students who met the classroom criteria, his emphasis was on negative reinforcement. Following Cortes' discussion with the Respondent as to these deficiencies, she continued to see minimal improvement. It was also recommended that the Respondent visit Mrs. Layland, the department chairperson, to observe her classroom management techniques. Layland had a behavior modification plan in place and was able to work individually with each student while other students remained on task. The Respondent did visit Mrs. Layland's class but there was no significant improvement following that visit. On May 24, 1982, Cortes performed a second annual evaluation on the Respondent in which she found him unacceptable in one category, preparation and planning and acceptable in the remaining categories, but did not recommend him for reemployment. The second annual evaluation had only one unacceptable category, preparation and planning, and overall Respondent was rated unacceptable. However, the area in which the Respondent was rated unacceptable is especially important in the context of exceptional education. Preparation and planning is an important aspect of this field since planning for exceptional education students must be done on an individual basis. Additionally, the teacher has to plan what each student will be learning over a given period of time, and such planning is necessary in order to successfully instruct these students. Notwithstanding the Respondent's improvement, Cortes moved for his nonreappointment at the conclusion of the 1981-82 school year. The Respondent, however, was reappointed for the 1982-83 school year, when it was determined that the documentation upon which the nonreappointment was to be based was insufficient due to noncompliance with the existing union contract. Prior to the completion of the 1981-82 school year, the Respondent, through his area representative, Yvonne Perez, requested a transfer back into a regular classroom where the Respondent could teach Spanish or Social Studies. This was based on the Respondent's recognition that he was encountering extreme difficulties in teaching varying exceptionalities. Patrick Gray, Personnel Director for the Dade County School System, was aware of the request for a transfer on behalf of the Respondent and agreed to consider it. Gray subsequently determined not to transfer the Respondent, and reassigned him to his existing position. Following his assignment back to Carol City Junior High School, Cortes began to formally observe the Respondent. The first such observation of the 1982-83 school year occurred on September 13, 1982, less than one month after teachers had returned to school. Cortes observed the Respondent and documented an observation sheet with five attached papers. Observations performed the previous year had included only one statement. Approximately one month later, Cortes conducted another observation with four detailed attachments. The documentation provided to the Respondent in September and October of 1982 was accumulated to verify or affirm the decision which was made by Cortes in May of the prior year, to terminate the Respondent. Based on Cortes' observations of the Respondent while he was employed at Carol City Junior High School, she would not recommend him for a teaching position in any other field. According to Cortes, the Respondent is lacking the basic skills necessary to be a successful teacher. Marsha Gams, chairperson of the Exceptional Education Department at Carol City Junior High School during the 1981-82 school year and Respondent's supervisor, met with the Respondent on numerous occasions during the course of his assignment to Carol City Junior High School. Although Gams saw improvement on Respondent's part during the period that she observed him, the improvement was not significant. Based on Gams' observation of the Respondent's class, she felt that the Respondent's students were not receiving a minimum education experience since the Respondent did not have an adequate grasp of the curriculum and materials required for the learning disabled and educable mentally handicapped students. The Respondent's class eventually affected Gams' students due to the noise level which came from his adjoining class. Karen Layland, chairperson of the Exceptional Education Department at Carol City Junior High School during the 1982-83 school year, also worked with the Respondent. They had joint planning periods and spent a number of afternoons reviewing lesson plans, methods, curriculum, and matching materials to IEP objectives. According to Layland, the Respondent's basic problem was that he did not clearly understand the requirements of teaching varying exceptionalities Layland did not observe significant academic progress in the Respondent's class. The Respondent's grade book was disorganized and the materials contained in the student's folders were not appropriate for the particular students. Moreover, there was a lack of organization in his classroom in that students left class without permission. Although Layland felt that the Respondent was well intentioned, he did not have an adequate grasp of the curriculum, teaching management and behavior management that are necessary in an exceptional education setting. Even if Layland had been allowed to continue to work with the Respondent for the remainder of the school year, she did not feel that he could have been brought up to a competent level to teach varying exceptionalities during that period of time. Based on her observations, Layland believed that the Respondent's students were not receiving a minimum education experience due to the Respondent's lack of definite knowledge of methods in instructional techniques for varying exceptional students. By November, 1982, the School Board had made a determination that the school system had exhausted its remedies to raise the Respondent's performance to an acceptable level. Although the Respondent had obtained an acceptable rating from Cortes at the end of the 1982 school year, even this evaluation demonstrated a serious deficiency on Respondent's part. Additionally, during the 1981-82 school year the Respondent encountered numerous significant problems which had not been adequately remediated in order to permit him to continue teaching varying exceptionality students. The school board administration declined Perez' request that the Respondent be transferred into a regular class on the belief that the Respondent was incompetent in basic classroom instruction. However, based on the Respondent's teaching record prior to his employment at Carol City Junior High School, the Respondent encountered difficulties only when he was teaching varying exceptionalities, and in other fields, his basic skills were documented as acceptable. At all material times, the Respondent was employed as an annual contract teacher and did not hold a professional service contract.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered by the Petitioner Dade County School Board affirming the dismissal of the Respondent. DONE and ENTERED this 26th day of September, 1983, in Tallahassee, Florida. SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of September, 1983.
The Issue Whether Respondent should be dismissed from her employment as a teacher in the Orange County Public Schools based on charges of incompetency and gross insubordination, as set forth in the letter of L. Linton Deck, Jr., dated August 16, 1977.
Findings Of Fact Respondent Ethel R. Jones has been an elementary school teacher for twelve years. She taught a year in Georgia before obtaining her degree in commercial education at Bethune-Cookman College at Daytona Beach, Florida, in 1960. After teaching for one year at Hungerford Elementary School in Eatonville, Orange County, Florida, in 1963, she pursued further studies and received her certification in elementary education. After teaching several years in various Orange County and Highlands County public schools, she became employed at Ocoee Elementary School, Ocoee, Florida, in 1970 and taught there for seven years through the 1976-77 school year. She was on annual contract for the first four years and then was granted a continuing contract the following year. She taught a sixth-grade class her first year at Ocoee and then became a fourth-grade teacher until the 1976-77 year when she again instructed a class of approximately 31 sixth-grade pupils. (Testimony of Respondent) Respondent served under three principals at Ocoee from 1972 to 1977. School records reflect that from 1973 two of the principals each rendered two annual performance reports on respondent termed "Assessment of Instruction." During the first year of each of these periods, the principals noted that respondent needed improvement in maintaining good rapport with students, parents and co-workers. During the second year of each period, each principal rated the respondent satisfactory in all respects. The third principal, Maxie Cinnamon, assumed her duties at Ocoee during the 1976-77 school year. (Petitioner's Composite Exhibit 1) During the first month of the school year, Principal Cinnamon received approximately twelve-complaints about the respondent from parents of children in her class. Most of these complaints dealt with apprehensions concerning respondent's teaching ability based on her prior performance with fourth-grade students. As a result, Cinnamon visited the respondent's classroom on September 9, 1976, and observed class instruction for several hours. She noted a number of deficiencies in the quality of respondent's teaching. These included unfamiliarity with the definitions of common words, inadequate preparation and lesson plans, inappropriate grouping of students and poor communication with students. These observations were set forth in great detail in a written document, dated September 14, 1976, which was provided to respondent as recommendations for improvement. Additionally, an unofficial "Assessment of Instruction" was rendered by the principal that indicated need for improvement in various areas. (Testimony of Cinnamon, Petitioner's Composite Exhibits 1, 7) During the course of the school year, the principal continued to receive complaints from parents and requests that their children be transferred from respondent's class. These complaints included reports that respondent was an inadequate teacher and that her disciplinary methods were inappropriate. In addition, no improvement in the previously-noted areas of deficiency had been observed by the principal. A number of conferences between Cinnamon and the respondent transpired in the fall of 1976 in an attempt to resolve these continuing problems, but achieved little or no success. Cinnamon directed a number of memorandums to respondent pointing out problem areas and suggesting remedial steps. She also suggested special courses and seminars that respondent could attend to improve her classroom instruction and to achieve a better relationship with parents and students. The respondent referred students to the principal's office on disciplinary matters some 35 times during the school year. For the most part, these referrals involved male students who were low achievers and either disrupted the classroom or failed to complete lesson assignments. (Testimony of Cinnamon, Respondent, Petitioner's Exhibits 8,9, 11-14) In December, 1976, Principal Cinnamon requested the Professional Practice Council of the State Department of Education to make a professional reviewer available to observe respondent's classroom performance and provide any necessary suggestions or recommendations for improvement. Thereafter, on January 31 and February 1, 1977, Mrs. Gretchen M. Olcott, a classroom teacher from Pinellas County, was sent to Ocoee Elementary School and conducted a "remediation review" concerning respondent. She rendered a report of her observations which was furnished to the respondent on March 11, 1977. The report contained many critical remarks concerning the quality of respondent's teaching ability and included detailed recommendations and suggestions for improvement. Most of Olcott's observations paralleled closely the previous deficiencies noted by Cinnamon and dealt primarily with inadequate lesson plans, lack of organization, poor student behavior patterns, lack of effective use of teaching materials and equipment, and the need to establish clear objectives and long-range goals. Also on March 11, Cinnamon wrote a letter to the respondent again listing her deficiencies and providing recommendations in that regard. The letter informed the respondent that unless she showed substantial improvement in all the noted areas by May 1, 1977, it would be necessary that she be recommended for dismissal to the Superintendent of the Orange County Schools. (Testimony of Cinnamon, Petitioner's Exhibits 3-5) During the ensuing weeks, Cinnamon was of the opinion that respondent had not materially improved her shortcomings despite efforts to assist her. At a conference in March, she told respondent that if she made no substantial improvement by May 23, she would recommend dismissal. She also requested that another reviewer be provided by the Professional Practices Council. Mr. Richard Svirskas visited respondent's classroom from May 11 to 13, 1977, for the Professional Practices Council. His report was similar to that of the previous reviewer and it concluded that respondent was far below average in ability in comparison with the majority of teachers known to the reviewer. (Testimony of Cinnamon, Petitioner's Exhibit 6) As a result of the reviewers' reports and respondent's failure to show improvement, Principal Cinnamon, on June 7, 1977, recommended to the Superintendent of Orange County public schools that she be dismissed from employment. Based on this recommendation, the Superintendent, by letter of August 16, 1977, charged the respondent with 14 areas of incompetency and three instances of gross insubordination. On August 18, 1977, the Superintendent recommended to the School Board of Orange County that respondent be suspended without pay pending a hearing on the charges if requested. The school board approved the recommendation and suspended the respondent without pay. Respondent thereafter requested a hearing in the matter. (Testimony of Cinnamon, Case File) Respondent testified as a witness and maintained that she had received no support during the year from the school administration and that she could not please Principal Cinnamon in any respect. She feels that she was the victim of a conspiracy between Cinnamon and parents of her students, and that the independent reviewers sent to assess her classroom performance were "against" her because they had met with Cinnamon in private during their visit. The respondent further implied that Cinnamon had a dislike for her because she was the only black teacher in the intermediate level. No black students were enrolled at Ocoee Elementary School during the 1976-77 school year, but there were five black teachers including the respondent. The respondent further claimed that she had done her utmost to follow the recommendations for improvement made to her by Cinnamon and the reviewers, but that she received no assistance from the administration in this regard. Further, she claimed that she was unable to enroll in certain reading, student discipline, and teacher effectiveness courses for various reasons; however, she did take a mathematics course at her own expense and attended several seminars. Although Cinnamon had testified that she had instructed respondent not to set up learning centers in her classroom because of her lack of organizational ability, the respondent denied that she was given such instructions. She testified that she established this system of instruction because Cinnamon had recommended it to her. She also denied that she had placed children in the halls for disciplinary reasons, or deliberately omitted to teach reading and math on each school day, contrary to instructions, as claimed by Cinnamon. (Testimony of Jones, Cinnamon) Based on the evidence presented at the hearing, it is found that during the 1976-77 school year: Respondent failed to make adequate plans and set definite objectives for her class- room instruction. Respondent failed to provide learning situations consistent with students' abilities. Respondent failed to exhibit adequate command of the subject matter that she taught. Respondent failed to communicate clearly and effectively with the students. Respondent failed to control the class so that a positive learning environment was created and maintained. Respondent failed to adequately pursue her professional growth and to seek ways of correcting identified deficiencies. It is further found that there is insufficient evidence to establish that the respondent committed the following alleged acts of gross insubordination: Suspended children from class by placing them in the hall and otherwise leaving them unsupervised after being specifically told not to do so. Failed to teach reading and math on each school day as specifically instructed to do. Failed and refused to maintain and utilize a plan book as instructed by the principal. It is further found that insufficient evidence was presented to establish that the respondent was a victim of a conspiracy by the principal of Ocoee Elementary School or anyone else, or that any racial discrimination was practiced against her.
Recommendation That respondent Ethel R. Jones be dismissed from employment by the School Board of Orange County, Florida, for incompetency, pursuant to Section 231.36(6), Florida Statutes. Done and Entered this 5th day of December, 1977, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Joseph W. DuRocher, Esquire 326 North Fern Creek Avenue Orlando, Florida 32803 Howard W. Cooper, Esquire 101 South Lake Avenue Orlando, Florida 32801 John W. Bowen, Esquire 308 North Magnolia Avenue Orlando, Florida 32801
The Issue Whether Respondent violated section 1012.795(1)(j), Florida Statutes (2011), and Florida Administrative Code Rule 6A- 10.081(3)(a) and (e), with respect to her treatment of students in her sixth-grade class and if so, what penalty should be imposed.
Findings Of Fact Based upon the demeanor of the witnesses, the documentary evidence presented, and the record as a whole, the following facts are found: Respondent, Donna Faber-Soukey, is a licensed educator in the State of Florida, who holds Florida Educator Certificate 840010, covering the areas of elementary education and prekindergarten primary education, valid through June 30, 2015. Respondent has also obtained certification in the areas of K-12 health and K-12 physical education in the State of New York, and has a master’s degree in health administration. Respondent began teaching at Old Kings Elementary School (Old Kings) in the Flagler County School District in approximately 2004. Through the spring of 2010, she taught kindergarten and/or first grade, and received highly effective, exemplary, or very effective (depending on the rating tool) evaluation ratings each school year. In August 2010, Respondent’s husband suffered a significant health emergency that required her absence from school. As a result of events that are not the subject of these proceedings, Respondent did not teach at Old Kings for the 2010- 2011 school year, but returned in the fall of 2011. During this time, there were many issues in Respondent’s life that were causing extra stress for her, including the significant illnesses of several close family members, as well as her own diagnosis for depression. Nancy Willis was the new principal at Old Kings in the fall of 2011. While it was her first year at Old Kings, she had many years of experience as a principal. At the beginning of the 2011-2012 school year, she needed a sixth-grade inclusion teacher and understood that Respondent had taught upper grades before. She needed a veteran teacher, so placed Respondent in the sixth-grade inclusion classroom. Respondent was not comfortable with this placement and made her concerns known to Ms. Willis. Despite her request to be assigned to a first-grade or kindergarten class, she remained assigned to the sixth-grade class. Respondent found the class to be difficult to control, and admitted at hearing that she was “not on her game.” As noted above, there were other events taking place in Respondent’s life that effected Respondent professionally. However, any reference to other issues that were present is supplied only for context or for mitigation purposes. This Recommended Order deals only with those factual issues specifically alleged in the Amended Administrative Complaint. At the beginning of the school year, Respondent outlined the classroom rules and procedures that she expected the children to follow in her classroom. Students admitted at hearing that those rules were reasonable. One of the established rules was that when students came into the room, they were supposed to get the materials they would need for class out of their backpacks and were to place their backpacks in cubbies in the back of the room. This rule was important to Respondent, because she considered it to be essential for maintaining a safe environment in the classroom. However, it was common for students in the class to ignore this rule, and leave their backpacks on the floor next to their desks. Respondent would remind students of the need to place the backpacks in their assigned cubbies, but to no avail. At some point, Respondent started taking the backpacks found on the floor and placing them outside the classroom. While she testified that she simply put them outside the door, several students testified credibly that she would sometimes toss the backpacks, without regard for what may be inside them. Specifically, Respondent tossed both M.B. and J.A.’s backpacks outside of the classroom. There was testimony that J.A.’s glasses were inside his backpack and were broken as a result of the backpack being tossed, but J.A. did not testify. While other students saw Respondent toss the backpack, the testimony regarding the broken glasses was based upon J.A. telling other students that his glasses were broken, as opposed to the students who testified seeing the broken glasses themselves. Moreover, the Amended Administrative Complaint makes no mention of Respondent being responsible for breaking J.A.’s glasses. It must be noted, however, that the term “toss” conjures up different visuals for different people. According to Merriam Webster, the term means to throw with a quick, light motion; to move or lift something quickly or suddenly; or to move back and forth or up and down. www.merriam- webster.com/dictionary/toss. There is nothing in the definition that would attach a violent intent to the action, and it is possible for a person to “toss” a backpack with no intention of damaging the backpack or its contents. It is found that Respondent tossed the backpacks outside with no intention of damaging them or their contents, but did so in a careless fashion and did not take any measures to insure that nothing was in fact damaged when she did so. Some students testified that having students’ backpacks handled this way made them feel Respondent had no respect for their personal belongings. Their testimony in this regard is accepted. The students in Respondent’s classes were a challenging group. Some who testified admitted at hearing that they were not the best behaved. For example, one admitted that he enjoyed being referred to as the class clown, and another admitted that she had an “attitude problem.” There were also indications of significant bullying and conflict between students, and referrals to the office and refocus forms were issued frequently. Some students did not respect Respondent as a sixth-grade teacher and acted accordingly. Respondent had difficulty controlling the students in her class, and was exceedingly frustrated by their behavior. Simply put, teaching in a sixth-grade inclusion class was far different from the kindergarten/first-grade environment to which Respondent was accustomed. On at least two occasions, her frustration was such that she authored and provided documents for students to sign, which contained information about the behavior of other students in her classroom. For example, on December 14, 2011, there was an incident in her classroom involving student Z.M. The details related to the incident are not important, but the incident resulted in a referral for Z.M. Respondent wrote her account of the incident, comprising two pages. She asked two students who were present at the time of the incident to sign the second page of the document as witnesses. Respondent admitted authoring the document and asking the two students, H.W. and L.L., to sign it. She explained that she prepared the narrative for the benefit of the administrator who would receive the referral, and asked for the students to sign it so that the administrator would know which students had witnessed the incident. Respondent testified that she only showed the students the second page, which had a little more than one paragraph of text and a place for their signatures. H.W. did not testify, and L.L. recognized her signature on the narrative but did not recall signing it. Respondent’s testimony that she only showed the students the second page is accepted. However, it makes little difference. The second page stated: [s]uspension, today’s events and his current failing academic standing as a retention in 6th grade. I have tried to keep this child in my classroom since he is a repeater and will be going to seventh grade next year. He could easily have been written up and referred weekly. I have tried to develop a relationship with him to support and encourage him. His behavior is however, a detriment to the class as a whole. At this point, he will no longer be extended any leniency for inappropriate behavior. The line for the first signature is less than one inch from the typed text. It does not matter whether the two students signing the document were shown the first page: there is significant derogatory information about both Z.M.’s behaviors and academic issues on the page that the two students signed. The fact that page two of the document does not mention Z.M. by name is also irrelevant, given that the students were asked to sign the narrative soon after the incident where Z.M. was clearly a participant. On or about December 19, 2011, Respondent prepared a second narrative regarding problematic behaviors in her classroom. The narrative also stated that the students signing it have never witnessed Ms. Soukey use physical force to get the boys in her class to behave. She asked several students in the classroom to sign the document, and admits doing so. This narrative is signed by students R.R., S.R., S.P., N.S., C.G., G.D., and B.B. Only one of these students testified at hearing, and that student’s testimony does not reference the narrative. Respondent admitted preparing the narrative, stating that upon the advice of counsel, she was documenting those things that were happening in her classroom because she felt that she was being set up for a constructive termination. This narrative does not reference Z.M. Preparing the documents for her personal use is one thing. Having students sign the documents regarding the behavior of their classmates is another matter altogether. It was inappropriate to ask students in the classroom to sign a document detailing the misbehavior of other students in their class. Respondent must have been aware that a student had accused her of using physical force against him, in light of her including a denial of such behavior in the December 19 narrative. However, the evidence presented at hearing did not rise to the level of clear and convincing evidence that she, in fact, inappropriately grabbed, pushed or hit students in her class. There were students who testified that Respondent pushed them in order to get them moving to their seats. Some students described Respondent’s actions as placing her hands on a student’s shoulders to propel them forward toward the student’s seat. It is found that she did in fact place her hands on students to nudge them along to their seats. Beyond that, however, the students’ testimony was vague at best. The students often did not indicate who was pushed, pulled, or hit, and little or no date or time-frame was identified.3/ On the other hand, several students testified that they never saw Respondent punch, slap, or push anyone, or pull their hair. Z.M., one of the most credible students who testified, admitted his role in a fight that occurred in the classroom, and admitted that he enjoyed being considered the class clown. However, he did not recall Respondent ever punching, slapping, or grabbing a student by the hair. When asked if she ever grabbed anyone by the shirt and pulled them, he answered, “not really in an aggressive way, no.” One student, K.J., testified that Respondent deliberately stepped on his toes in class. K.J. is a tall student who could not sit comfortably at his desk with his feet under the desk, because to do so caused his knees to hit the underside of the desk. As a result, he often had his feet in the aisle in front of him. K.J. sat on the front row, and Respondent told him repeatedly to keep his feet out of the aisle. K.J. testified that Respondent stepped on his toes at least twice. He testified that he would ask her to get off of his feet and she would not respond, acting like she did not hear him, and then would ask him to put his feet under the desk. He was not aware that custodians had come to the classroom to alter his desk so that he could sit more comfortably. K.J. admitted it was possible that Respondent asked him to keep his feet under his desk for safety reasons, but believed that she stepped on his toes deliberately. However, on the totality of the record presented, while the evidence is compelling that Respondent did in fact step on K.J.’s toes, the evidence leaves more than one equally plausible alternative in terms of Respondent’s intentions. She could have deliberately stepped on K.J.’s toes to make a point to him about keeping them under his desk, or she could have stepped on them accidentally because they were admittedly in an aisle that should have been clear. Testimony was fairly uniform that the classroom was noisy. She could have heard his request that she move off of his toes and ignored it, or she could have not heard it. Given that either interpretation is plausible, the evidence is not clear and convincing that stepping on Respondent’s toes was intentional. There was no dispute that the classes Respondent taught that year were unruly and that she was frustrated with the students in her care. There was a lot of yelling, and little effective discipline. There was discussion among the students about the desire of some them to have a different teacher, and at some point in February 2012, students in Respondent’s classes were asked to go to the office and make statements about things they observed in the classroom. Ms. Willis testified that the students were asked to write a statement if there was anything that had happened in Respondent’s class. The statements were far from uniform. It is clear from reading some of the statements that the students are reacting to an inquiry concerning inappropriate touching, and responding that yes, she did touch students, or no, she did not. Whether the question that framed the responses came from Ms. Willis or from the students themselves is not clear: however, there was testimony that the students circulated a petition to try to get her fired, and that they discussed among themselves what they were going to write in their statements. Even with such discussion, there is not enough concrete detail about the alleged events to deem them credible.4/ In addition, there were several adults who came in and out of Respondent’s classroom and spent significant time there during this period. Among those adults were Ms. Christensen, Ms. King, Ms. Hammack, and Ms. Bentz. All who testified talked about the noisy, unruly atmosphere of the classroom, and there was agreement that Respondent appeared frustrated. However, none testified to ever seeing her inappropriately touch a student. Ms. Christensen did not testify. She was a paraprofessional in Respondent’s classroom. There are written statements by Ms. Christensen about various matters occurring in the classroom, in which she states that she had not witnessed Ms. Soukey physically handle a student by hitting, slapping, or punching them.5/ Ms. Hammack was also a paraprofessional who worked in Respondent’s classroom, generally every day. She identified her statement that she had never seen Respondent use physical force to force a student to comply, and testified credibly that she never saw Respondent punch or kick a student, or grab them by the hair, and that she would have seen it if it had occurred. Similarly, Ms. King was a special education teacher who worked in Respondent’s classroom approximately twice a week, in the mornings. She testified credibly that while there was not much control in the classroom, she never saw Respondent be physically inappropriate with a student. Finally, Jan Bentz was a veteran teacher who worked as a substitute at Old Kings. In January 2012, she was asked to work in Respondent’s classroom to provide classroom management support while Respondent taught. When Respondent was eventually removed from the classroom, Ms. Bentz took her place. She, like the other adults who spent time in Respondent’s classroom, testified that she never saw Respondent use excessive force with a student. More importantly, Ms. Bentz testified that the students told her about things that had happened in the classroom previously that she did not in fact witness. She gave the student’s stories little credence because she considered it to be hearsay. When asked on cross-examination about what she was told, she stated that what the students told her was mostly about thrown backpacks: “I don’t know that any actual hand-on-kid type thing happened, and I don’t recall being told about anything like that.” Surely, reporting that a teacher used excessive use of force would have been as important, if not more so, than relating instances where backpacks were tossed outside. Respondent readily admitted that she was not well- suited to teach in a sixth-grade inclusion class, and that because of the many issues going on in her life, she was not doing her best work. However, she also testified, credibly, that while she was exhausted, frustrated, and sometimes angry while working with these students, she did not touch them inappropriately. While it is found that she did guide students to their seats by placing her hands on their shoulders, and sometimes applied pressure to get them to sit in their seats; and that she stepped on K.J.’s toes, it is found that she did not take either action with the intention of harming any child in her care. Respondent clearly did not have control of the sixth- grade classroom and it was a mistake to place her there, especially given the concerns she had expressed when given the assignment. The many serious complications in her personal life, including the serious illness of her husband, mother, and father, and her own debilitating depression, certainly affected her ability to perform her job as she wanted to. Her actions in creating narratives and having them signed by students was misguided and meant as a way of documenting things happening in her classroom. However, it was inappropriate to involve the students in her classroom in her attempt to create any kind of record, whether personal or professional.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent has violated section 1012.795(1)(j) and rule 6A-10.081(3)(a) and (e). It is further recommended Respondent be reprimanded; that she be placed on probation for a period of one year; and that as part of her probation, she be required to attend courses as determined by the Commission, in the areas of ethics and stress management. DONE AND ENTERED this 15th day of January, 2016, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of January, 2016.
Findings Of Fact Respondent holds Florida Teacher's Certificate No. 097813, Rank II, Post Graduate, valid through June 30, 1987, covering the areas of Elementary Education, Art Education, Early Child Education, Reading and Junior College. During the 1976-1977 school year Respondent was employed as an elementary school teacher at Astoria Park Elementary School in Leon County, Florida. Petitioner received a suggestion of Respondent's incompetence from school officials in Leon County, Florida, on October 14, 1977, and pursuant to the authority contained in Rule 6A-4.37, Florida Administrative Code, a professional inquiry into the allegation of Respondent's incompetence was conducted. On July 10, 1979, a report was submitted to the Executive Committee of Respondent which recommended that the Commissioner of Education find probable cause to believe that Respondent was guilty of acts constituting grounds for revocation or suspension of her teaching certificate. Pursuant to that recommendation, probable cause was found by the Commissioner on July 13, 1979. The filing of a petition seeking revocation of Respondent's teaching certificate was thereupon directed. On October 5, 1976, Respondent neglected to provide adequate or competent instructional plans for a substitute teacher, even though she had previously been advised by her principal that her absence from her classroom would be necessitated by a professional workshop; that a substitute would be required to conduct her classes; and that instructional plans for substitutes were essential to the accomplishment of the educational goals during her absence. On January 6, 1977, Respondent was warned in writing by her principal that, in accordance with school policy, adequate lesson plans for substitute teachers were necessary in order to insure a continued movement toward instructional goals for her students. Notwithstanding this warning, however, Respondent, during an absence necessitated by illness from January 31, 1977 through February 4, 1977, failed to leave adequate or comprehensible lesson plans and procedures for a substitute teacher. In fact, on various of the days during this time, no lesson plans whatever were left. On December 1, 1976, Respondent failed to deploy audio-visual equipment in a manner in which it could be heard by her class, failed to adequately explain the content of the material presented, and failed to use the equipment in a manner calculated to adequately instruct her students. During this same lesson, Respondent failed to utilize adequate techniques for the management of the behavior of her students, resulting in student behavior which interfered with instruction of her students. During the 1976-1977 school year, Respondent consistently maintained charts and visual teaching aids in her classroom in a disorganized and illogical manner, demonstrated poor enunciation and a lack of plural/singular distinction in the pronunciation of words, demonstrated incorrect letter formation and a lack of continuity of lessons from one day to the next. In addition, at various times during the 1976-1977 school year, in the process of grading and evaluating her class's test papers, homework and standardized test results, Respondent failed to accurately and adequately grade, evaluate and analyze her students' performance. As a result of Respondent's failure in this regard, her students were not properly advised of whether the tasks they had undertaken to learn were adequately understood, and were thus potentially permitted to retain inaccurate concepts of basic skills. Throughout academic year 1976-1977, Respondent consistently failed to utilize available instructional materials and equipment, such as student handouts, mimeograph materials and bulletin boards, in a manner calculated to accomplish the tasks for which those instructional aids were designed. In the use of such instructional aids, Respondent consistently misspelled words, used illegible manuscript, misused words and grammar, passed out sloppily prepared materials, and in general failed to utilize teaching techniques sufficient to assure that a particular task or subject was or could be understood by her students. In addition, Respondent consistently maintained her classroom in an unkempt and disorganized condition, despite reasonable requests and warnings from her principal. During this period Respondent constantly rearranged desks and seats in her classroom, causing confusion, disorientation, and general turbulence among her students. On December 3, 1976, Respondent publicly embarrassed one of her students by calling the student a "liar" when the student told Respondent that she had turned in a work assignment to Respondent. Respondent was apparently unable to locate the student's work at that time, but later found the paper on Respondent's desk. Despite this mistake, Respondent failed to apologize to the student or retract her criticism. At various times during the 1976-1977 school year, Respondent inflicted corporal punishment on her students by yanking them from their seats and/or shaking them, even though Respondent had repeatedly been instructed by her principal not to touch a student in any manner except as prescribed by school policy, and in the presence of other instructional or administrative personnel. Throughout academic year 1976-1977, until remedial action was taken by her principal, Respondent consistently failed to adequately and accurately explain her students' progress and goal achievement through evaluative methods and procedures made available to the students' parents. Further, Respondent consistently exhibited during this period incorrect and inappropriate grammar in class and in reports and other communications with her colleagues and students' parents. In addition, Respondent also displayed a cumulative lack of proper grammar and instructional skills, as well as a persistent lack of basic knowledge and inaccuracy in transmitting information in subject areas assigned to her class. On February 1, 1977, Respondent, in violation of school and district policy of which she had repeatedly been reminded, failed to report for school and failed to notify appropriate persons that she would be absent. Respondent was repeatedly counselled by her supervisors concerning her performance in an attempt to provide remedial assistance and advice. Respondent was issued repeated warnings that her persistence in the patterns and practices of conduct set forth above would result in disciplinary proceedings being instituted against her. As indicated earlier in this order, Respondent has asserted, as a defense to allegations of incompetency, that she suffered from medical and/or emotional or mental impairments during the 1976-1977 school year. However, the only medical testimony of record in this proceeding establishes that Respondent displays no gross psychiatric deviations, and is suffering from no diagnosable psychiatric disease.
Findings Of Fact The Respondent Myers holds teaching certificate number 329276. The Respondent's certificate is a Rank 3 covering the area of elementary education. The Respondent Myers holds a fourth annual contract as a teacher with the Dade County public schools which expires at the end of the 1983-84 school year. During the 1982-83 school year, she was employed at North Hialeah Elementary School as a second grade teacher. Allen C. Starke was the principal of that school. Mr. Starke and Ms. Myers met during the first week of the school term when Starke asked Myers to balance a student's grades, which Myers had neglected to do the previous year. A student's grade is balanced when the teacher gives a final grade balancing all four nine-week reporting period grades. The Respondent took the student' file home and notwithstanding that there was nothing in the file to warrant a failing grade, gave the student all F's. Starke requested that the Respondent regrade the project, giving the appropriate grades. The task was accomplished. The 1982-83 school year was the Respondent's third year of service with the Dade County public schools. Had her performance that year been satisfactory, she would have been eligible for continuing contract (tenure) status. As a third year teacher, she was subject to being observed in the classroom by her supervisors. Maria Pernas, the assistant principal at North Hialeah Elementary School, scheduled such an observation of the Respondent for October 5, 1982. However, when Ms. Pernas arrived in the classroom, it was in such a state of chaos and confusion that she approached the Respondent and told her that she would come back at a later date, hoping to give the Respondent the benefit of the doubt. Ms. Pernas returned to Respondent's classroom on November 2, 1982, but found the same state of affairs which she had observed on October Again she decided to give the Respondent another chance and did not officially observe her on that date. Ms. Pernas' official observation of the Respondent took place on November 18, 1982. The classroom climate was again chaotic and confused. The Respondent, however, appeared unaware of the lack of student interest or of the difficulties being encountered by her students. When students raised their hands, the Respondent either did not notice or paid no attention to them. The Respondent was attempting to conduct a reading lesson but she lacked the basic elements for implementing the same. It is an accepted technique in the teaching of reading for the teacher to physically divide the class into approximately three ability groups. The teacher then conducts approximately 20 minutes of teacher-directed lesson with one of those groups while the other groups do independent, previously assigned work. The teacher concludes with the first group, assigns them independent study, moves to the next group, etc. until the School Board mandated one consecutive hour of reading is complete and she has conducted a teacher-directed lesson with each group. The Respondent conducted no teacher-directed reading lesson and assigned no independent work. She did not have appropriate lesson plans and the class did not last the required one hour notwithstanding the fact that the Respondent was aware of this requirement. Ms. Pernas recommended several sources of help to the Respondent, including books and documents. Subsequent to this observation, Mr. Starke, Ms. Pernas and the Respondent participated in a conference-for-the-record held on November 30, 1982. The Respondent was advised to study various texts and to enroll in a course in "techniques of instruction" through the Teacher Education Center. The Teacher Education Center is an educational center mandated by the Florida Legislature. Its purpose is to provide in-service staff development courses and workshops for instructional personnel. Cathia Darling had also been called in to assist the Respondent. Ms. Darling is a teaching specialist who implements workshops for beginning teachers in the Dade County school system who may be having difficulty. On October 18, 19, and 21 1982, she had been at North Hialeah Elementary School providing teachers an update on the PREP program, a Dade County program designed to give students expanded services, both academically and physically, in the classroom. She was called back by Ms. Pernas on November 4 and 10 to go over the implementation of a reading program (RSVP) 1/ with two of the teachers at North Hialeah Elementary School who required further help. The Respondent was one of those teachers and Ms. Darling met with her for approximately one-half hour to 45 minutes at that time. Ms. Pernas observed the Respondent again on January 21, 1983. At that time she was teaching a science class and the topic was "Body Temperature." Pernas noted that the Respondent had insufficient visual aids and/or manipulative devices. Further, she did not appear to understand the substance of what she was teaching. She wrote a "102 degree Fahrenheit temperature" as "1.02." Pernas advised her that there should be no decimal point when recording such a temperature. When a student answered a question in Celsius (the student was Hispanic and accustomed to Celsius), the Respondent said the answer was wrong. Pernas suggested that the Respondent review literature regarding Fahrenheit and Celsius. She also recommended that the Respondent attend a TEC workshop in preparation and planning. The Respondent did not attend the prescribed workshop on preparation and planning, because the course was too far away from her home. Another course was offered but she did not attend that one either, stating that her sister was ill. Subsequent to Pernas' second evaluation, the Respondent told Mr. Starke that she believed Ms. Pernas was being unfair. Accordingly, Starke offered to observe the Respondent and she agreed. The observation took place on February 11, 1983. Starke found the classroom to be disorganized and confused. When he entered the classroom, the Respondent picked up a book and began to read. The children did not have their books open. They were walking about the classroom, generally entertaining themselves. They were not involved in the lesson and they were not paying any attention to the Respondent who continued to read verbatim from the book. From time to time, she would say "Sit down, sit down, can't you hear I'm reading?" The children continued to walk about. Starke felt they exhibited this behavior because they didn't know what they were supposed to be doing. After observing the classroom for a period, Starke began to check the Respondent's student folders. Teachers in the Dade County school system are required to keep folders to show samples of students' work. He found that as of February 11, 1983, no papers had been graded and placed in the folders since November 18, 1982. Starke pointed out that if the children's work had not been graded, a diagnostic, prescriptive approach to teaching could not be utilized. In short, the Respondent could not possibly have known at what level her students were functioning if she did not grade their papers. Accordingly, she could not teach them what they needed to know. Starke made several suggestions in his recommended prescription as to how the Respondent could improve her performance. He asked her to become familiar with the lesson before attempting to deliver it and he told her to read the teacher's guide and use it throughout the period as appropriate. He prescribed that in order to cut down on classroom disruption, she obtain the children's attention before attempting to introduce a lesson and that she distribute the books and other needed materials before the class activities began. He asked her to use the grade level chairperson as a resource. She was directed to report back to Mr. Starke and let him know what she had done. The Respondent did not report back to Mr. Starke and let him know what she had done. The Respondent did not report back to Mr. Starke and did not see the grade level chairperson. The Respondent was also told to correct and grade the students' papers as mandated and to place at least two graded papers per student per subject matter per week in each work folder. She did not comply with this directive, nor did she comply with Starke's repeated direction to contact the TEC to enroll in the course. At this point, Starke advised the Respondent that since her teaching performance had been unsatisfactory during that school year, he would not recommend her for continuing contract for the school year 1983-84. He did state, however, that he would recommend that she be granted a fourth year annual contract. He had not given up on her at that time and wanted to give her all the possible assistance he could. Starke observed the Respondent again on March 24, 1983. According to Starke's master schedule, the Respondent was to be teaching a reading lesson. However, when he entered the class- room, she was not teaching reading. Again, the class was chaotic. The students were unprepared for work. The Respondent herself had no lesson plans for the lesson. The students in the Respondent's class never moved into reading groups and she never gave a teacher-directed lesson to any group. Instead, she called on four students to read orally out of four different texts, each book representing an ability group. The students who were not studying a particular book derived no benefit from the reading. After 30 minutes, the Respondent asked the students to put their reading books away, and started a spelling lesson. Starke noted that she had only one grade in her record book for eight weeks of instruction. She should have had 16 or 18 or at least one grade per week per subject. Additionally, the Respondent had not graded any papers since November 18, 1982. Starke gave her another prescription telling her to have lesson plans before attempting to teach and to arrange her students into reading groups. He asked that she introduce all lessons and make sure materials were in place before instructions were given. She was told again to teach reading for 60 consecutive minutes and she was directed to grade her students' papers -- at least one grade per student per subject per week. Starke, at that point, kept eight of the folders that he had been going through in Ms. Myers' room. Subsequently, he replaced five of them, and three were introduced into evidence in this case. A review of these files indicates that when the papers were graded (prior to November 18, 1982), they were graded incorrectly. Credit was given for obvious errors. Sometimes the corrections themselves were incorrect. Corrections were written as "Not rite," or "Not finiseb." A math paper was graded A when 6 of the 15 problems were done incorrectly. Incorrect answers were marked "correct," correct answers were marked "incorrect," and some answers were not marked at all. The Respondent testified that all of the grades which appear in Exhibits 10A, B and C are marks which she did not personally put there and that she does not know who graded those papers or when. The Hearing Officer finds that the Respondent's explanation lacks credibility and that the Respondent graded the papers incorrectly. Another conference-for-the-record was held on March 30, 1983. At that time, the Respondent and Starke discussed her inadequate lesson plans. The Respondent stated, "I had lesson plans, but they did not represent what I was teaching." When questioned about not grading her students' papers, the Respondent stated that some of the papers were graded but that she didn't have time to grade them all. At that conference, Starke also noted that he had come upon the Respondent sitting with her grade book in front of her and placing grades in that book. He noted that there were no papers in front of the Respondent from which she could be recording the grades. When he inquired about it, she said that she was putting grades in the book. He asked how she could put grades in her book with no papers to copy from and she said she just knew what the children had done. Starke believed that this was impossible, considering the size of her class. Subsequently, at the conference of March 30, the Respondent said that, in fact, the grades had always been in the book but that she just hadn't seen them, and that when Starke had come upon her she was just checking students present or absent. Starke advised the Respondent that based upon her total performance, he was changing his recommendation from an extended annual contract to dismissal for cause. Notwithstanding this recommendation, Starke testified that if the Respondent had suddenly given some evidence that she was going to become a competent teacher, he would have changed his recommendation. On April 5, 1983, Mr. Starke gave the Respondent a memorandum from John N. Ranieri, the director of the Dade-Monroe Education Center, outlining numerous courses which Starke felt would be of benefit to Ms. Myers in improving her deficiencies. These were courses which he had prescribed for her and which she had not taken. John Ranieri testified that the Respondent did in fact enroll in three TEC courses during the 1982-83 school year. She enrolled in Techniques of Instruction twice and she enrolled in a class in Classroom Management. The system does not permit credit for taking a course over, therefore she did not get credit for the second time she took the Techniques of Instruction course. She did receive credit, however, for taking that course once. The Respondent failed the Classroom Management course. The records of the Teacher Education Center indicate that she did not turn in her assignments, she did not pass the test (she received the second lowest test score in a class of 90) and she was late to class three out of the four times the class met. Each time she was late over twenty minutes. The Respondent had numerous excuses for her lack of success in this class. She stated that she was late for the first class because the traffic was heavy. She stated that even though Starke had told her she could leave school 15 minutes early, her relief teacher did not show up on time and she therefore did not leave on time. She testified that she told Starke about her problem with the substitute teacher, but Starke testified that this was not so. The Respondent said that she failed the test in the course because the instructor gave her the wrong test and that when he gave her the right test, she only had 20 minutes left out of an hour class to take the test. The Hearing Officer finds this testimony by the Respondent not credible. On April 29, 1983, Cathia Darling returned to North Hialeah Elementary School to once again attempt to assist the Respondent in establishing a reading program. While Darling had been working with the Respondent in November, she had explained how to initiate the pre-testing, instruction, and, finally, post- testing. When Darling returned in April, the Respondent had still not mastered what she had been taught in November, and the process had to be started over again. Darling returned again in May to follow up, and the Respondent still had not implemented any of the testing. This testing should have been started at the beginning of the school year. At that point, Darling implemented the Respondent's testing program and charted the results. In Darling's opinion, the Respondent never implemented a reading program in her second grade classroom. In an attempt to explain her failure to implement the program, the Respondent stated that she asked for an RSVP kit four or five times but was never given one. Allen Starke testi- fied that the Respondent never asked him for any instructional materials and that he had never denied her request for an RSVP kit at any time during the 1982-83 school year, nor to his knowledge had anyone ever denied her access to the kit. Cathia Darling noted that the booklets necessary to implement the program were in the school, although they were not in Daisy Myers' classroom when Darling visited that classroom. No teacher at North Hialeah had complained to Darling about not having access to the RSVP kits or booklets. On May 5, 1983, Eneida Hartner, a school system area director who supervises 18 schools including North Hialeah Elementary School, observed the Respondent teach a reading class. Hartner was called in to observe the teacher as an objective outside observer. She noted for the record that it is always possible that an outside observer might feel that a teacher could improve her performance. Hartner observed that a significant amount of class time was wasted by students talking to each other. This occurred because they had not been given any clear direction as to what they were to do, The Respondent was not using a lesson plan nor was she using the teacher's guide for the reading lesson. She interacted with the children for a very limited amount of time when she should have worked with each group of children for 20 minutes. She was not teaching decoding skills, which she should have been teaching (decoding teaches the sound a letter makes). Ms. Hartner looked at the student folders and found that the answers in the fo1ders were not marked right or wrong. Grades were given to the students but there was no indication as to whether the answer to the question was correct. When Ms. Hartner asked the Respondent about her diagnostic/prescriptive folders (testing, teaching, testing) which every teacher is required to maintain, Myers said that she did not have any. She had no records of what the children knew or what they did not know. Hartner saw no visible evidence that any child had learned anything from the Respondent. Subsequent to her observation of the Respondent, Ms. Hartner gave Mr. Starke a prescription to be delivered to the Respondent. The prescription consisted of a group of activities having to do with self-assessment, self- analysis, making changes and trying them out in the classroom. The Respondent did not fully comply with the prescription, and Hartner testified that it was her opinion that no further remediation would he successful in making the Respondent a competent teacher. The Respondent was observed one more time during the 1982-83 school year. On June 9, 1983, Maria Pernas observed what was scheduled as a reading lesson. In fact, the Respondent was teaching writing. Pernas noted that the Respondent's plans did not match what she was teaching. She also found that the Respondent continued to be unacceptable in teaching techniques, assessment techniques and professional responsibility. Pernas testified that if she were to rank all of the teachers that she has evaluated during her years as an assistant principal, the Respondent would be in the very last place. She does not believe that the Respondent's students gained anything by being in her class during the 1982-83 school year. Allen Starke agreed with Ms. Pernas' evaluation. In fact, he felt that the Respondent's second grade students had learned so little during their year in Respondent's class that he broke the class up into smaller groups, assigning them to numerous other teachers for the third grade. He did this because he felt that the students might learn more from other students who had had a successful experience in the second grade than if they were all kept together. Starke does not believe that the Respondent should be a classroom teacher. The last witness to testify for the Petitioners was Patrick Gray, Executive Director of the Division of Personnel Control for the School Board of Dade County, Florida. He stated that having reviewed the file of the Respondent, based on his extensive experience in the field of personnel control and education, it was his judgment that she had been provided every opportunity to demonstrate competence or to become competent in an instructional capacity in the public school system, that she had failed to evidence the required standard of instructional competence and that she should therefore not be licensed to teach children by the State of Florida; neither is she competent to be employed by the school in the Dade County public school system. Dr. Gray testified that the Respondent had been ranked acceptable for her performance for the 1980-81 school year and the 1981-82 school year; however, that both of the principals who evaluated her those years noted that there were categories which required improvement. He also noted that in a letter from the Respondent's 1980-81 principal, Ms. Culver, the principal declined to testify on her behalf at this hearing. She stated that she recalled that the two areas in which the Respondent required improvement as a teacher in 1980-81 were preparation and planning and classroom management and that her reviews of the observations of Myers' teaching made during the 1982-83 school year showed that time and time again the same areas were listed as unacceptable. Ms. Culver felt that the Respondent's planning should have been greatly improved by the end of her second year of teaching. She also noted that during the 1980- 81 school year, she had released the Respondent on several occasions to observe and work with other classroom teachers who excelled in the area of classroom management. Both Ms. Culver and the assistant principal had recommended books in both areas to the Respondent. Ms. Culver observed that the Respondent had taken courses in RSVP as early as 1980-81, which she felt should have benefited her in teaching reading. Yet, the 1982-83 observations showed that the Respondent lacked competence in the area. Ms. Culver concluded that the Respondent is a fine person but, apparently, she lacks the basic skills to be a teacher.
Recommendation Based on the foregoing, it is recommended that: The teaching certificate of Respondent Daisy Myers be permanently revoked; and The suspension of the Respondent, Daisy Myers by the School Board of Dade County, Florida, be sustained, and that Respondent Myers be dismissed from employment with the School Board of Dade County, Florida, and any claim for back pay be denied. DONE and ORDERED this 11th day of January, 1985, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 11th day of January, 1985.
